Stella B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Apr 11, 2018

0520170314 (E.E.O.C. Apr. 11, 2018)

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

Stella B.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.

Request No. 0520170314

Appeal No. 0120150731

Agency No. 1H302002109

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120150731 (March 24, 2017).
EEOC Regulations provide that the Commission may, in its discretion, grant a request to
reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where
the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c).

BACKGROUND

On appeal, the Commission affirmed the Agency’s final decision finding that Complainant was
not entitled to a hearing. The Commission also affirmed the Agency’s ruling that the Agency
had not engaged in disability discrimination because it provided a reasonable accommodation
and was entitled to request updated medical documentation.

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.
0520170314

2
Specifically, with respect to Complainant’s claim that she should have received a hearing for her
disability claims, the Commission noted that the record did not contain a timely or formal request
for a hearing from Complainant following receipt of the investigative file. Instead, the EEOC’s
Hearings Unit had mistakenly treated a supplemental investigative report as a hearing request
and improperly issued an Acknowledgement Order on December 9, 2014. However, on being
informed of the error by the Agency, the EEOC Administrative Judge (AJ) to whom the case had
been assigned issued an order of dismissal, especially since the Agency had already issued a
decision on the merits.

As for Complainant’s failure to accommodate claim, the Commission decided that since the
Complainant had testified that being permitted to sit down on a chair for 15 minutes with her
legs propped on a stack of boxes each hour fulfilled her accommodation request, the Agency had
satisfied its legal obligation. To the extent that the Complainant argued that being required to
take her hourly breaks by her supervisor’s desk in the middle of the workroom was humiliating,
the Commission decided that the accommodation was effective. The Agency officials stated that
it authorized Complainant to take her hourly breaks by the supervisor’s desk so that she would
not have to walk the extra distance to the break room and the record did not contain any evidence
that the officials provided this accommodation with an intent to humiliate Complainant based on
her disability.

Lastly, the Commission decided that the Agency acted properly under the law when it requested
updated medical documentation from Complainant. The record revealed that her medical forms
had not been updated since December 2007, and management officials had a legitimate interest
in ascertaining Complainant's most recent work restrictions as part of the interactive process in
accommodating her disabilities.

On request for reconsideration, Complainant contends that the Commission should reverse its
decision sustaining the Agency’s final decision finding that the Agency did not discriminate
against her based on her disability and in reprisal for prior EEO Activity because it rests on a
clearly erroneous interpretation of fact or law. Specifically, Complainant argues that the
Agency’s finding that “sitting at the Supervisor’s desk for 15 minutes every hour fulfilled her
accommodation request” was clear error because it was a “a hostile act that was . . . so harmful
that it could have reasonably dissuaded an employee from pursuing her rights.” Complainant
further argued that the Agency’s accommodation was so “egregious” that it was discontinued
after the union filed a grievance; hence, it could not have constituted an appropriate
accommodation of Complainant’s disability.

In a separate brief, Complainant reiterates that she should have received a hearing. Complainant
bases her argument on the fact that the EEOC issued an Acknowledgment Order indicating
receipt of a hearing request.

0520170314

3
ANALYSIS

The Commission finds that the appellate decision is not clearly erroneous or substantially
impacting on the policies, practices, or operations of the Agency. The record clearly establishes
that Complainant was not entitled to a hearing on her claims. She never produced a formal or
timely hearing request and she did not dispute the events leading up to the mistaken issuance of
the EEOC’s Acknowledgement Order. Further, we uphold our ruling that the Agency’s request
for updated medical documentation was proper.

Lastly, based on the record before us, we find no reason to set aside the accommodation
determination. We note that the disability laws were enacted to protect individuals with
disabilities in the workplace, and that Complainant insists the afforded accommodation, however
effective, was humiliating and unsafe. But Commission precedent permits employers to provide
an accommodation that Complainant may perceive to be humiliating so long as it is an
“effective” accommodation that enables the individual to perform the essential functions of the
job or gain equal access to a benefit or privilege of employment. See Complainant v. Office of
Personnel Management, EEOC Appeal No. 01A51261 (March 10, 2006) (holding that
management fulfilled its accommodation obligation by offering the complainant transportation
on a shuttle bus, even though the complainant felt embarrassed because she needed a stool to get
on the shuttle bus); Complainant v. Department of Veterans Administration, EEOC Appeal No.
01A22872 (July 31, 2003) (holding that management satisfied its accommodation obligation by
offering the complainant a wheelchair, notwithstanding the complainant’s argument that the use
of a wheelchair was humiliating). Here, Complainant confirmed that receiving a break every
hour to rest her legs for 15 minutes addressed her medical need, even though she would have
preferred to take the breaks in the breakroom. Therefore, while the accommodation was not
perfect, it was effective.

As for whether the Agency’s accommodation was unsafe, there is nothing in the record to make
such determination beyond Complainant’s assertion. On this record, it is undisputed that,
Complainant was encouraged by her union representative to file a grievance because the
Agency’s accommodation was perceived to be unsafe. It is also undisputed that, following the
filing of the union grievance, Complainant was ultimately permitted to use the breakroom as she
had requested rather than having to sit on a stool and use boxes to prop her legs. The record,
however, does not address whether this action was taken based on a finding that the employer’s
accommodation was humiliating or unsafe, as Complainant contended, or whether it was a
settlement without a finding of culpability. Accordingly, without more, there is no basis upon
which to grant reconsideration.

The federal government is to be a “model employer” of individuals with disabilities. 29 C.F.R.
1614.203(a). If more than one accommodation is effective, “the preference of the individual
with a disability should be given primary consideration” even if the Agency has the ultimate
discretion to choose between them. Complainant v. Dep’t of Defense, EEOC Appeal No.
01970984 (January 16, 2001); see also Appendix to Part 1630-Interpretive Guidance on Title I of
0520170314

4
the Americans with Disabilities Act, 29 C.F.R. Pt. 1630, App. § 1630.9 at 422.2 The Agency
should engage in the interactive process to determine whether there is a resolution satisfying to
both the employee and the employer. As a federal appellate court noted, such engagement “may,
in fact, not only lead to identifying a specific accommodation that will allow a disabled
employee to continue to function as a dignified and valued employee, it may also help sensitize
the employer to the needs and worth of the disabled person,” furthering the interests of the law,
the employer, and the employee. Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 330 (3d
Cir. 2003).

On this record, however, the Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 0120150731 remains the Commission's decision. There is no further right
of administrative appeal on the decision of the Commission on this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

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.

2 "The ADA and its attendant regulations were enacted, in part, to address perceived
inadequacies in the Rehabilitation Act of 1973, 29 U.S.C. § 794." Hutchinson v. United Parcel
Serv. Inc., 883 F. Supp. 379, 387 (N.D. Iowa 1995) (citing Helen L. v. DiDario, 46 F.3d 325,
329 (3d Cir.1995) (describing in detail the history of Congressional efforts to attack disability
discrimination and close gaps in Rehabilitation Act). Congress believed “[i]ncorporating the
ADA standards into the Rehabilitation Act will assure that there will be consistent, equitable
treatment for both individuals with disabilities and businesses under the two laws.” Flynn v.
Distinctive Home Care, Inc., 812 F.3d 422, 427 (5th Cir. 2016)); 42 U.S.C. § 12117(b) (requiring
agencies administering federal disability statutes to avoid applying “inconsistent or conflicting
standards” to employment discrimination claims).
0520170314

5
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

April 11, 2018
Date