01991867
09-08-2000
Richard A. Irvin, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Richard A. Irvin v. Department of Energy
01991867
September 8, 2000
Richard A. Irvin, )
Complainant, )
) Appeal No. 01991867
v. ) Agency No. DOE-98-046HQ/PAM
)
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal of a final agency decision concerning
his complaint of unlawful employment discrimination on the basis of
physical disability (narcolepsy with cataplexy and vision loss), in
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791, et seq.<1> Complainant alleges he was discriminated against when:
(1) he was denied a flextime schedule with late arrival; and (2) he was
denied clerical assistance as a reasonable accommodation. The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405). For the following reasons, the Commission
REVERSES the final agency decision in part.
BACKGROUND
The record reveals that during the relevant time, complainant
was employed as a Procurement Analyst, GS-1102-14 at the agency's
Washington, D.C. headquarters facility. Complainant alleged that he
had narcolepsy with cataplexy. The condition caused the complainant to
experience excessive and sometimes uncontrollable daytime sleepiness.
Cataplexy resulted in episodes of muscle weakness, sudden loss in muscle
control and total body collapse. As a result of his condition, the
complainant was unable to awaken early in the morning and to meet an
early arrival time. He worked an alternate work schedule with hours
from 8:00a.m. to 5:30 p.m. and alternate Mondays off. At some point
in time not entirely clear from the record, the complainant adjusted
his hours with the consent of his supervisor to 8:30 a.m. to 6:00 p.m
as an accommodation to his inability to awaken early. He remained on
the alternate work schedule. The complainant was also allowed to nap
in the Health Unit for two 20-30 minute periods during the work day due
to the daytime drowsiness he experienced.
In 1997, the complainant experienced difficulty arriving to work by 8:30
a.m. He requested his supervisor (S1)(no disability) to make additional
adjustments to his work schedule by allowing him to start work at
9:30, to work later than 6:00 p.m and to remain on a flextime schedule.
S1 refused, stating that he was concerned about being able to verify
that the complainant worked after 6:00 when all other employees and
supervisors had left. S1 offered the complainant the option of going
off of the alternate work schedule and working from 9:30 a.m. to 6:00
p.m. Monday through Friday.
The complainant also contended that he was required to submit medical
documentation whenever he took sick leave even though it was known he
suffered from a chronic condition. If he did not have the documentation
or if he was not under a doctor's care, he was required to take annual
leave.
Regarding the complainant's allegation that he had not been provided with
clerical assistance, the complainant had requested the assistance of a
clerk as an accommodation to his vision problems. His condition consisted
of congenital estropia (muscle loss) in the left eye with significantly
reduced vision brought on by narcolepsy. The condition inhibited his
ability to see handwritten changes of his supervisors to his documents.
S1 agreed to the complainant's request for a clerk to type and incorporate
his supervisors' changes and made his own clerical assistant available
to him. The complainant alleged, however, that the clerk refused to
read or to type for him and that S1 failed to intervene on his behalf
and failed to carry out his agreement to provide the accommodation.
Finally, the complainant contended that supervisors and co-workers made
repeated derogatory statements about his condition which constituted
unlawful harassment.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on January 27, 1998.
At the conclusion of the investigation, complainant requested that
the agency issue a final agency decision. In his request, complainant
indicated that compensatory damages was part of the relief requested
for the alleged discrimination.
The agency concluded that complainant's claim of a disabling condition
was well-documented. Therefore, the agency did not dispute that the
complainant was a qualified person with a disability who was entitled
to some reasonable accommodation. The agency concluded that its
denial of individualized clerical support and an extended work day
were not unreasonable and as such it did not discriminate against
the complainant. The complainant's claims of derogatory remarks by
co-workers and supervisors were found to be unsubstantiated based on
their unrefuted denials that such remarks were made. The agency also
noted that the complainant was granted disability retirement and left
his employment effective August 14, 1998.
On appeal, complainant raised many of the same arguments he stated during
the investigation but also argued that the agency had not shown it would
cause undue hardship to grant his request for extended work hours or for
additional clerical assistance. He also argued that the agency's refusal
to extend his hours for reasons related to safety were not raised before
thereby not allowing him time to respond. He questioned the veracity of
the agency's safety claims as well. The agency requests that we affirm
its final decision.
ANALYSIS AND FINDINGS
In order to establish a prima facie case of disability discrimination,
complainant must show that he is a qualified individual with a disability
and that the agency treated him less favorably than individuals not within
his protected group or it failed to make a reasonable accommodation to
his disability. 29 C.F.R.� 1630.1 et. seq. A qualified individual with
a disability is one who has an impairment which substantially limits a
major life activity but who can perform the essential functions of their
job with or without a reasonable accommodation. 29 C.F.R.� 1630.2(m).
In this case, we find that the complainant has an impairment identified as
narcolepsy with cataplexy and vision loss which substantially limited his
ability to see, to sleep and to stay awake during the day. The medical
records and literature described narcolepsy as a chronic neurological
disorder marked by excessive daytime sleepiness. Cataplexy is considered
a hallmark symptom of narcolepsy, and is characterized as muscle
weakness, or the sudden loss of muscle control and total body collapse.
The complainant's vision loss in the left eye was a childhood condition
which was exacerbated by the effects of narcolepsy.
We also find that the complainant was a qualified individual with a
disability in that he was able to perform the essential functions of his
position from the time the agency was aware of his condition in 1995 to
the time he took sick leave in February 1998.<2> Our finding is based
on the lack of any evidence that the complainant was unable to perform
his job. We also rely on the evidence in the record which indicates
he was rated highly successful in his 1997 performance evaluation and
fully successful in his 1998 performance evaluation. The fact that the
complainant left his employment because of his disability retirement
is not relevant to our finding because it was based on a different
definition of disability. See, EEOC Enforcement Guidance on the Effect
of Representations Made in Applications for Benefits on the Determination
of Whether a Person is a �Qualified Individual with a Disability� Under
the Americans with Disabilities Act of 1990, No. 915.002 (2/12/97).
The complainant has cited four reasons why he believes the agency
discriminated against him based on his disability by failing to grant
him reasonable accommodations and by condoning or making derogatory
remarks about his disability. For the reasons described below, we find
the agency failed in some respects to grant reasonable accommodations
but in other respects, the agency acted properly.
First, the complainant claims he was denied a flextime schedule with
late arrival and late departure time. We find that the agency was not
required to grant the complainant both a flextime schedule as well as
late departure times. The agency was willing to grant the complainant
a late arrival time of 9:30 a.m. if he went off of the alternate work
schedule. In this respect, the agency was not required to grant the
exact accommodation requested by the complainant, only an accommodation
which was effective. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act No. 915.002 (3/1/99) p. 17. The complainant's argument that he should
have been permitted to stay on the alternate work schedule because he
usually had doctor's appointments on his �off� day was not a sufficient
reason to override the agency's suggested accommodation.
Second, the complainant claims he was denied sufficient clerical
help to accommodate his reduced vision caused in part by narcolepsy.
The record reflects that the clerk charged with helping the complainant
admitted she did not type for the complainant, except for envelopes.
Her testimony revealed that S1 did not require her to type documents for
the complainant by her statement that �everyone did their own typing.�
Her statement indicates all too clearly that she was not given any
responsibility to type the complainant's work or that her responsibility
was minimal. The agency makes no showing that such an accommodation would
have imposed an undue hardship. Furthermore, the agency's provision of an
oversized monitor was not enough of an accommodation, by itself, because
it did not assist the complainant in reading the handwritten comments of
his supervisors. Therefore, we find that the agency failed to provide
the complainant with an effective accommodation for his reduced vision
brought on by narcolepsy.
Third, the complainant claims that he was unfairly required to submit
medical documentation for his frequent lateness which was caused by
narcolepsy and that he was required to take annual leave if he did not.
He stated that under the collective bargaining agreement, he was not
required to continuously provide medical documentation when it was
known he suffered from a chronic condition. The record supports the
complainant's claim because S1 concedes he changed a sick leave request
to annual leave and after researching the issue he changed all annual
leave requests to sick leave. Although S1 claimed it only happened once,
we conclude that his own testimony suggests it happened many more times.
Furthermore, the time keeper did not refute the complainant's claim that
she continued to demand medical documentation to support his sick leave
requests for his morning lateness. We find this was unreasonable and
that the complainant should have been granted the use of accrued paid
leave as an accommodation. Id. p. 26.
Lastly, the complainant claims that his co-workers and supervisors made
derogatory statements which created a hostile work environment or which
were otherwise prohibited under the law. From the record we are aware of
three statements - two made by supervisors and one made by a co-worker
which essentially characterized the complainant's inability to awaken
early as being related to drinking and staying out too late. S1 allegedly
cursed at the complainant during an argument about an accommodation and
a higher level supervisor used profanity after receiving information
about the complainant's condition. We find that these three instances,
although inappropriate, were not sufficiently severe and pervasive to
constitute a hostile work environment actionable under the law.
The Commission has found that claims of a few isolated incidents of
alleged harassment usually are not sufficient to state a harassment claim.
See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030
(July 12, 1996); Banks v. Health and Human Services, EEOC Request
No. 05940481 (February 16, 1995). The complainant must show that the
discriminatory conduct was so severe or pervasive that it created a work
environment abusive to employees because of a characteristic protected
by statute. Rideout v. Department of the Army, EEOC Request No. 01933866
(November 22, 1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17,
22 (1993)) req. for recons. den. EEOC Request No. 05970995 (May 20, 1999).
We also consider whether the statements were frequent and whether they
unreasonably interfered with an employee's work performance. Harris,
510 U.S. at 23. Applying these criteria, we find that the statements
complained of do not rise to the level of discriminatory harassment.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we REVERSE in part and
AFFIRM in part the agency's final decision.
ORDER
The agency is hereby ORDERED to carry out the following:
1) The issues of compensatory damages, attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant,
through counsel, shall submit a request for attorney's fees and costs
in accordance with the Attorney's Fees paragraph set forth below.
No later than sixty (60) days after the agency's receipt of the
attorney's fees statement and supporting affidavit, the agency shall
issue a final agency decision addressing the issues of attorney's fees,
costs, and compensatory damages. The agency shall submit a copy of the
final decision to the Compliance Officer at the address set forth below.
The agency will provide or make available, eight (8) hours of training
to S1 and the complainant's second and third level supervisors on
the requirements of employers under the Rehabilitation Act of 1973 (as
amended) and the associated regulations and guidances available on the
subject of reasonable accommodations for individuals with disabilities.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Headquarters facility in Washington,
D.C., 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 19848,
Washington, D.C. 20036. 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
September 8, 2000
Date Frances M. Hart, Executive Officer,
Executive Secretariat
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
2 The complainant left the agency on disability retirement in August 1998
after being on sick leave beginning in February 1998.