01984555
02-07-2000
Willie B. Burkes, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Willie B. Burkes v. Social Security Administration
01984555
February 7, 2000
Willie B. Burkes, )
Complainant, ) Appeal No. 01984555
)
v. ) Agency No. 96-0048-SSA
)
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
________________________________)
DECISION
Complainant filed an appeal with this Commission from a final decision
of the Social Security Administration (agency) concerning his complaint
of unlawful employment discrimination, in violation of �501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
Complainant's claim of discrimination is based upon his physical handicap
(epilepsy) when his October 18, 1995 addendum request for reasonable
accommodation was denied. The appeal is accepted in accordance with
EEOC Order No. 960.001.
On November 7, 1995, complainant filed a formal complaint claiming
discrimination as referenced above. The complaint was accepted
for processing. Following an investigation which was completed and
transmitted to complainant on October 9, 1997, the agency issued an FAD,
on April 27, 1998, finding no discrimination.<2> It is this agency
decision which the complainant now appeals.
BACKGROUND
Complainant started with the agency, in 1993, as GS-8 TeleService
Representative in Boston, Massachusetts. Complainant sought EEO
counseling on August 4, 1995, following an incident with his then
immediate supervisor (S1). Complainant alleged that his newly assigned
second-line supervisor (S2) started to question his disability starting
in January, 1995. For example, complainant asserted that his supervisor
began to question some of the informal accommodations that were provided
to complainant, such as being allowed extra time to get food to take with
his medications. Complainant further affirmed that the questioning of
his disability came to a head in August, 1995, when he returned from
the nurse and his immediate supervisor made a comment about the high
number of seizures that complainant had been having lately. The record
indicates that complainant was offended by the comment and initiated
a verbal altercation with his supervisor. Because of complainant's
threatening remarks and inappropriate behavior, he was suspended.
Complainant filed a grievance on this matter.<3>
In September, 1995, S2 requested additional information about the extent
of complainant's disability. Complainant's physician, thereafter,
provided a letter dated September 25, 1995, which explained, inter alia,
that complainant has more difficulty with seizures during the work week,
which may be associated with a variety of environmental conditions,
including stress. Complainant's physician did not address the issue of
a reasonable accommodation.
On October 18, 1995, complainant submitted an addendum to an earlier
request for accommodation,<4> and subsequently raised to the EEO
counselor the allegation that this new request had been denied.
Complainant requested that he be allowed to: (1) sign off his telephone
system for the duration of any seizure he may have while at work and
put his head on his desk; (2) remove his headset, but not sign off,
when experiencing momentary muscle movement; (3) walk for a minute
or two to stretch and loosen muscles or perhaps get a drink of water;
and (4) go to the nurse's office for thirty minutes to one hour with
management approval or, absent the presence of a manager, after telling
one of three designated persons of his intent.
On October 25, 1995, complainant's union representative, R1, forwarded a
memorandum to S2 which stated that "we have reached an agreement that
[complainant] will be granted up to fifteen minutes administrative
leave when he must see the nurse due to issues surrounding his epilepsy.
Any extra time beyond the fifteen minute administrative leave period,
he will be free to choose sick, annual, or leave without pay (LWOP).
LWOP will be granted despite [complainant's] existing sick or annual
leave balance if he chooses to utilize LWOP leave instead."
On February 13, 1996, S2 submitted a memorandum to complainant which
agreed to complainant's written request. Specifically, S2 agreed to a
break of up to fifteen minutes from the phones, but added the requirement
that complainant keep his supervisor, or another member of management,
advised at all times of changes in his condition. S2 explained that it
was important to manage the office workload and ensure that complainant
receives the care that he needs.
FINAL AGENCY DECISION
The agency, in its FAD, found that complainant had sufficiently
established that he is a qualified individual with a disability within the
meaning of the Rehabilitation Act. Specifically, complainant's disability
is documented by two letters from his physician dated September 20, 1993
and September 25, 1995. Complainant's physician explains, inter alia,
that he has an unusual seizure disorder which, in addition to experiencing
frequent seizures, causes him excessive daytime drowsiness. The agency
noted that the undisputed record demonstrates that complainant is a
qualified individual with a disability, insofar as he and his supervisors
both have indicated that he is able to perform the essential functions
of his job.
The agency also determined that the agency met its burden to reasonably
accommodate complainant's disability. Specifically, the record indicates
that the agency had provided complainant with a reasonable accommodation
since his initial request in 1993. While complainant asserts that after
January, 1995, the reasonable accommodations were no longer effective,
the undisputed record indicates that complainant was never denied time to
recuperate after a seizure. In addition, the undisputed record indicates
that the agency engaged in an interactive process with complainant
to determine a proper reasonable accommodation following receipt of
complainant's addendum in October, 1995. Moreover, the record indicates
that the agency implemented each request raised in the 1995 reasonable
accommodation addendum. Subsequent to reaching an agreement with respect
to the reasonable accommodation addendum, and following the filing of
the EEO complaint, complainant sought additional accommodations, which
included: (1) up to one hour of administrative leave (instead of annual
leave, sick leave, or leave without pay) to recuperate after a seizure;
(2) a new supervisor; and (3) a transfer to a field office. In response
to these new requests, and in response to the August, 1995 altercation
with S1, the agency invited a representative of the Epilepsy Association
to conduct management training and complainant's supervisor was changed.
The agency found that the conduct by the agency as described above was
sufficient in providing complainant a reasonable accommodation which was
medically responsive while allowing complainant to perform the essential
functions of his position.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that, in all material respects, the agency accurately set forth
the relevant facts and properly analyzed the case using the appropriate
regulations, policies, and laws.
We note that while the agency contends that it provided everything
requested by complainant, the record is clear that the agency did
not provide complainant his request for: (1) more than 15 minutes
administrative leave to recuperate after each seizure; and (2) a
transfer to a field office. However, as explained more fully below,
we find that the agency was not obligated, under the Rehabilitation Act,
to accommodate these requests.
With respect to the first request, complainant cites the agency's
written policy permitting management discretion to award up to one hour
of administrative leave where the nurse recommends a rest period for an
employee. Accordingly, complainant asserts that he should be entitled
to a full one hour of administrative leave before having to utilize
his annual leave, sick leave or leave without pay options. We disagree
with complainant. While "permitting the use of accrued paid leave, or
unpaid leave, is a form of reasonable accommodation when necessitated
by an employee's disability, [a]n employer does not have to provide paid
leave beyond that which is provided to similarly-situated employees." See
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, No. 915.002, p. 26 (March
1, 1999). Although complainant is provided 15 minutes of administrative
leave, he is also permitted up to one hour of annual leave, sick leave,
or leave without pay, to recuperate following a seizure. The record
indicates that this accommodation, while not preferred by complainant,
has been perfectly effective in allowing complainant the necessary
time to recuperate after each seizure and in his ability to perform the
essential functions of his position. Furthermore, we note that there
is no evidence of disparate treatment in management's exercise of its
discretion with respect to its administrative leave policy. Accordingly,
we find that the agency did not fail to provide a reasonable accommodation
for complainant's disability when it failed to provide complainant more
than 15 minutes of administrative leave following a seizure.
We also find that the agency was not required to transfer complainant.
The record indicates that complainant requested a transfer to a field
office in order to change supervisors. Since the agency removed S2 and
replaced him with a new individual to supervise complainant, the transfer
was no longer necessary.<5>
For the foregoing reasons, we find that complainant has failed to
establish that he was denied a reasonable accommodation.<6> We note
that complainant has not raised any contentions on appeal. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
2/7/00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
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.
2 The record fails to indicate whether or not complainant was advised
of his right to request a hearing. However, since complainant does not
raise this issue on appeal, we do not address it herein.
3 While issues pertaining to the suspension formed the initial allegation
of complainant's informal and formal EEO complaints, this allegation was
ultimately dismissed by the agency since complainant, who is a member
of a collective bargaining unit covered by a national agreement which
provides for the allegations of discrimination, filed a grievance with
respect to this matter. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(4)).
4 On November 3, 1993, complainant had initially requested a reasonable
accommodation that would give him up to 1� hours of time to compose
himself after an epileptic seizure. Complainant affirmed that this
accommodation was provided until 1995.
5 To the extent that complainant is seeking a reassignment rather
than a transfer, we find that reassignment was not required in
this case. Reassignment is the "reasonable accommodation of last
resort and is required only after it has been determined that: (1)
there are no effective accommodations that will enable the employee
to perform the essential functions of his current position, or (2)
all other reasonable accommodations would impose an undue hardship."
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, No. 915.002, p. 39 (March
1, 1999). We find no evidence in the record that complainant was
unable to perform the essential functions of his position at any time.
Moreover, complainant affirmed that: (1) there has been "no decline"
in his performance rating since he has been working for the agency;
(2) he has received "Fully Satisfactory" in all performance ratings;
(3) "there has been no work change because of [his] handicap;" and (4)
he is "still doing the same job." Since the agency did not argue that
the existing reasonable accommodation posed an undue hardship, we find
that reassignment was not required.
6 To the extent that complainant is claiming he was harassed by his
supervisor on the basis of his disability, we find that the record fails
to support such a finding. Specifically, we find that complainant has
failed to show that management's conduct had the purpose or effect of
unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment.