[Redacted], Mahalia P., 1 Complainant,v.Martin J. Walsh, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Aug 16, 2021

Appeal No. 2020004686 (E.E.O.C. Aug. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mahalia P.,1 Complainant, v. Martin J. Walsh, Secretary, Department of Labor, Agency. Appeal No. 2020004686 Hearing No. 510-2019-00186X Agency No. DOL-18-04-007 DECISION On April 20, 2020, 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 March 23, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented on appeal is whether Complainant established, based on preponderant evidence, that she was denied a reasonable accommodation for her disability. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-0341-11 Administrative Officer at the Agency’s Office of Workers Compensation Programs (OWCP) Regional Office facility in Jacksonville, Florida. Complainant’s first-line supervisor was the 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. 2020004686 2 Regional Director (S1). Complainant alleged that she was subjected to discrimination by S1 and the Agency’s Administrative Officer (S2). Complainant identified her disability as the following medical conditions: concussion, cervical spine injury, lumbosacral spine, post-traumatic stress syndrome, adjustment disorder mixed with anxiety and depressed mood, somatic symptom disorder with predominant pain, generalized anxiety disorder, traumatic brain injury, adjustment disorder with work problems, major depression, and cognitive problems with neurogenic word finding and memory caused by either depression or brain dysfunction. According to Complainant, she engaged in prior protected EEO activity when she requested a reasonable accommodation and when she filed an EEO complaint on March 24, 2017. Complainant subsequently withdrew the EEO complaint she filed in March 2017. Complainant alleged that, after the November 2015 retirement of her coworker, a GS-0343-12 Management Analyst (C1), Complainant was expected to take on C1’s GS-12 duties as well as continuing to perform the duties of her own position. Complainant averred that taking on the additional duties caused her anxiety, so she requested a reasonable accommodation on November 7, 2016. Complainant requested: (1) a transfer to a vacant position; (2) additional breaks; (3) limited duties; (4) use of digital recorder; and (5) not required to answer the OWCP claimant phone line. On December 6, 2016, the Agency administratively closed Complainant’s reasonable accommodation request because of insufficient medical documentation to support her request. Complainant submitted another reasonable accommodation request on December 11, 2016. Complainant provided a medical documentation recommending the following limitations: (1) reassignment to a new work environment with less varied responsibilities; (2) limited workload with fewer programmatic responsibilities; (3) ability to use digital recorder; and (4) not responsible for answering the OWCP claimant phone line. S1 stated that, while Complainant’s accommodation request was considered, Complainant was accommodated on an interim basis with sedentary administrative duties such as filing documents, removing tabs from folders, and alphabetizing. Complainant also took leave for periods of time when she was unable to work. Complainant applied for and was interviewed for a GS-0343-11 Administrative Officer position with the Agency’s Office of Labor Management Standards (OLMS) in Detroit, Michigan. An EEO Specialist (E1) handling Complainant’s reasonable accommodation request offered Complainant reassignment to the OLMS GS-11 Administrative Officer position in Detroit, and Complainant accepted the reassignment offer on February 3, 2017. On February 14, 2017, E1 informed Complainant that the OLMS position in Detroit was no longer funded because of a hiring freeze. Complainant averred that, because she requested a reasonable accommodation, the hiring freeze should not have affected her ability to be reassigned. According to the record, OLMS did not fill the position in Detroit. S1 stated that OWCP does not have jurisdiction over OLMS, which is separately funded. In February 2017, E1 informed Complainant that a job search had found three additional vacant, funded positions for which Complainant was minimally qualified. 2020004686 3 Complainant did not respond to E1 regarding the positions. According to S1, on multiple occasions, Complainant refused to talk to E1 about the job search or her reasonable accommodation request. S2 added that Complainant was generally unresponsive, refused to respond to the job offers, or repeatedly changed her request criteria. On April 14, 2017, S1 denied Complainant’s request for reasonable accommodation. S1 stated that reducing Complainant’s program responsibilities or removing her duty of answering the claimant phone line would amount to elimination of essential duties of her position. Because Florida is a two-party consent state, Complainant could not use her digital recorder to record conversations unless all parties consented to being recorded. S1 added that the Agency had engaged in multiple job searches for positions to which Complainant could be reassigned and that Complainant was not responsive. Complainant requested reconsideration of the decision. According to S2, the reconsideration process was delayed because, between April 25 and June 22, 2017, Complainant submitted requests for retirement and for resignation that she repeatedly withdrew and then resubmitted. In July 2017, pursuant to Complainant’s request, the Agency performed another job search for any vacant, funded GS-11 positions for which Complainant was minimally qualified in her geographical areas of preference. The July 2017 job search was unsuccessful. On August 4, 2017, S2 affirmed the denial of Complainant’s reasonable accommodation request. Complainant asked to remain employed while her application for disability retirement was pending with the Office of Personnel Management. On September 26, 2017, Complainant received a Notice of Proposed Removal for medical inability to perform the duties of her position. On October 25, 2017, S2 notified Complainant that she was being removed effective October 28, 2017. According to S2, in her response to the proposed removal, Complainant asked for an accommodation consisting of the removal of essential functions of her position. On September 24, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (mental and physical) and reprisal for prior protected EEO activity (request for reasonable accommodation and withdrawn EEO complaint) when, on April 14, 2017, her request for reasonable accommodation was denied. 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 (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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. 2020004686 4 CONTENTIONS ON APPEAL On appeal, Complainant contends that she was denied a reasonable accommodation and subsequently removed for medical inability to perform her position on October 28, 2017. According to Complainant, she should have been reassigned to the OLMS position in Detroit, and the hiring freeze should not have affected her reassignment. The Agency did not submit a statement or brief in response to Complainant’s 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”). Complainant alleged that she was denied a reasonable accommodation. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), No. 915.002 (Oct. 17, 2002). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). “The term “qualified,” with respect to an individual with a disability, means that the individual 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). The discussion of “qualified” does not end at Complainant's position of record. The term “qualified individual with a disability,” with respect to employment, is defined as a person with a disability who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m). The term “position” is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. Therefore, in determining whether an employee is “qualified,” an agency must look beyond the position which the employee presently encumbers. See Enforcement Guidance on Reasonable Accommodation. 2020004686 5 In general, reassignment is the reasonable accommodation of last resort and should be considered only when: (1) there are no effective accommodations that would enable an employee to perform the essential functions of his or her current position; or (2) accommodating the employee in the current position would cause an undue hardship. 29 C.F.R. Part 1630, App. § 1630.2(n); Enforcement Guidance on Reasonable Accommodation, “Reassignment.” An agency should reassign the employee to a vacant position that is equivalent in terms of pay, status, and other related factors. If there are no vacant equivalent positions, then the agency should reassign the employee to a lower-level position that is closest to the current position. Id. When an employee's disability or need for an accommodation is not known or obvious, an employer may ask an employee for reasonable documentation about his or her disability, limitations, and accommodation requirements. See EEOC Enforcement Guidance on Disability- Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, Question 7 (July 27, 2000). Upon a complainant's request for reasonable accommodation, an employer may require that documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. See Enforcement Guidance on Reasonable Accommodation, Question 6. Complainant stated that her medical conditions substantially limited her in the major life activities of thinking, sleeping, and working. We find that the preponderance of the evidence in the record establishes that Complainant was an individual with a disability. Accordingly, we consider whether Complainant was a qualified individual with a disability and whether the Agency failed to provide her a reasonable accommodation. Complainant requested reasonable accommodations, and the record reflects that the Agency accommodated Complainant on an interim basis by assigning her tasks such as filing and alphabetizing. The Agency administratively closed Complainant’s first request for reasonable accommodation because she did not provide the requested medical documentation that explained her disability and her functional limitations. Because Complainant’s disability and her need for accommodation was not known or obvious, we find that the Agency’s request for documentation was appropriate. Complainant resubmitted her reasonable accommodation request. The Agency permitted Complainant to use the digital recorder for her own notes and dictations. The requested accommodations of a limited workload with fewer programmatic responsibilities and the removal of answering the OWCP claimant phone line from Complainant’s duties were not reasonable because they would remove essential functions of her Administrative Officer position. We find that the preponderance of the evidence reflects that Complainant was not a qualified person with a disability with respect to her Administrative Officer position of record. Accordingly, the Agency properly considered reassignment as a reasonable accommodation of last resort. 2020004686 6 The Agency offered Complainant reassignment to the OLMS position in Detroit. However, the Agency was unable to reassign Complainant because of the hiring freeze. Although Complainant contends that the hiring freeze should not have affected her reassignment because she had applied for a reasonable accommodation, the hiring freeze meant that it was no longer a vacant, funded position to which Complainant could be reassigned. The Agency performed two additional job searches. Complainant did not respond to E1 regarding the three positions found during the first job search, and the second job search did not find any vacant, funded positions. According to the record, the delay in the reasonable accommodation process was attributable to Complainant failing to cooperate in the interactive process as well as her withdrawn and resubmitted requests for retirement and resignation. Accordingly, we find that the Agency fulfilled its responsibilities under the Rehabilitation Act. CONCLUSION 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 finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, 2020004686 7 Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020004686 8 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 August 16, 2021 Date