01992198
02-13-2002
Jack K. Young, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Jack K. Young v. United States Postal Service (Pacific Area)
01992198
February 13, 2002
.
Jack K. Young,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01992198
Agency No. 4-F-950-0038-98
DECISION
INTRODUCTION
Jack K. Young (�complainant�) is appealing a final agency decision (�FAD�)
issued by his employer, the United States Postal Service (�the agency�).
In this FAD, the agency concluded that it had not unlawfully discriminated
against complainant by requiring him to take a full hour lunch break
(instead of the half an hour he requested). Complainant believes this
agency action constituted discrimination on the basis of his disability
(partially amputated leg), and violated Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq. (�the Rehabilitation
Act�).<1>
We, the United States Equal Employment Opportunity Commission (�EEOC� or
�the Commission�), accepted complainant's appeal pursuant to 29 C.F.R. �
1614.405(a). For the reasons set forth below, we agree with the agency.
We find that it complied with the relevant law, and that the FAD in
question should therefore be affirmed.
BACKGROUND
Complainant has a partially amputated leg, having sustained a war
injury while serving as a Green Beret in Vietnam. He currently wears a
prosthesis on his left leg below the knee. He has worked for the agency
with this prosthesis for many years in various capacities.
In March of 1995, he bid � and was selected � for a �box clerk� position
at the agency's facility in Morgan Hill, California. The hours for
the position were advertised as 6:00 a.m. to 3:00 p.m., with a one hour
lunch break. Complainant accepted and began serving in this new position.
He requested, however, that his lunchtime be shortened to half an hour,
and this request was granted.
Sometime in 1997, the Officer-in-Charge (�OIC�) of the Morgan Hill
facility concluded that the facility would function more efficiently if
its clerks all took one hour lunch breaks. Accordingly, OIC extended the
lunch break for all clerks to one hour. Those employees who previously
had taken a half an hour for lunch (including complainant) were thus
required to stay an extra half an hour at the end of their shifts.
Complainant informed OIC that requiring him to take a one hour lunch now
(and forcing him to stay later in the day) aggravated his disability.
Specifically, complainant told agency management that he only wore his
prosthesis at work (i.e., that he took it off as soon as he got home and
used crutches there). He explained that the longer he was required to
remain at work and wear his prosthesis, the more painful and complicated
his leg condition became. Complainant conceded that he had worked for
many years on shifts with one hour lunch breaks. Nevertheless, he also
alleged that his ability to withstand the longer work days had weakened
with age, and that the extended schedule would worsen his condition.
OIC asked complainant to attend a meeting to discuss his request
in greater detail. At this meeting (attended by OIC, complainant,
complainant's supervisor, and another agency manager), complainant
reiterated his need for the half an hour lunch accommodation.
OIC refused to provide this particular concession, but did offer other
accommodations instead. For example, OIC agreed to let complainant
take a one and one-half to two hour lunch break (so that complainant,
who lived close to the facility, would have time to go home over lunch
and rest his leg). Complainant rejected this alternative, however.
He also failed, despite the agency's request, to provide any medical
documentation substantiating his need for the shortened lunch hour,
specifically (or confirming his need for an accommodation, generally).
After it became clear that the agency would not allow him to take a half
an hour only for lunch, complainant filed his discrimination complaint.
The agency accepted this complaint for investigation, and ultimately
issued a FAD on the matter. In its FAD, the agency argued that it was
not required to grant whichever accommodation complainant preferred most,
and that it had offered an effective accommodation which complainant
had rejected. Therefore, the FAD concluded, it had not violated
the Rehabilitation Act or committed any sort of unlawful employment
discrimination.
On appeal, complainant claims that many clerks who had been subject to
the �one hour lunch� change were subsequently allowed to resume half
an hour lunches. He also says that another employee with an amputation
working as a clerk in his facility also takes a half an hour for lunch,
and that he is now the only clerk required, against his will, to take
a one hour lunch break.
Complainant therefore is asking us to order the agency to allow him to
take only a half an hour for lunch, and to overturn the agency's FAD
finding no discrimination.
ANALYSIS AND FINDINGS
We are charged with reviewing this FAD under the de novo standard
of review. See 29 C.F.R. � 1614.405(a). This essentially means that
in deciding this case, we are free to accept or reject the agency's
factual and legal conclusions at will. See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999)
(�EEO-MD-110�), at 9-15. Thus, we have carefully reviewed the entire
record before us in our attempt to discern whether a preponderance of the
evidence supports a finding of unlawful disability discrimination here.
See 29 C.F.R. � 1614.405(a). We find that it does not.
According to the Commission's regulations:
An Agency shall make reasonable accommodation to the known physical
or mental limitations of an applicant or employee who is a qualified
individual with [a disability]<2> unless the agency can demonstrate that
the accommodation would impose an undue hardship on the operation of its
program . . . . Reasonable accommodation may include, but shall not be
limited to: (i) Making facilities readily accessible to and usable by
individuals with [disabilities]; and (ii) Job restructuring, part-time
or modified work schedules, acquisition or modification of equipment
or devices, appropriate adjustment or modification of examinations,
the provision of readers and interpreters, and other similar actions.
29 C.F.R. �� 1614.203(c)(1), (2); cf. 29 C.F.R. �� 1630.2(o)(2)(ii),
1630.9(a).
In its FAD, the agency does not dispute that complainant is a qualified
individual with a disability. See Final Agency Decision Finding No
Discrimination (Dec. 18, 1998), at 4. It also has not claimed that
accommodating complainant would somehow impose an �undue hardship� on
its operations. Cf. 29 C.F.R. � 1630.15(d). Thus, the agency had an
undeniable duty to accommodate complainant's disability.
Consequently, the agency also had a duty to engage complainant in an
informal, interactive process to ascertain the nature of complainant's
condition, the work limitations it caused, and the type of accommodation
that would be necessary. See 29 C.F.R. � 1630.2(o)(3) (�To determine
the appropriate reasonable accommodation it may be necessary for the
[employer] to initiate an informal, interactive process with the
[complainant]. This process should identify the precise limitations
resulting from the disability and potential reasonable accommodations that
could overcome those limitations.�) OIC and complainant's supervisor
satisfied this agency burden by meeting with complainant, hearing his
position and concerns, and discussing possible accommodations for his
condition. After doing so, the agency decided to reject complainant's
choice of accommodation in favor of a different one. While complainant
may have believed that this accommodation ultimately offered (i.e.,
allowing him to rest his leg during an even longer lunch) was undesirable,
his dissatisfaction alone is not determinative.
To be sure, the suggestions and preferences of an employee seeking
reasonable accommodation must be given great weight. See, e.g.,
Enforcement Guidance: Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act (Mar. 1, 1999) (web version)
(�Reasonable Accommodation Guidance�), at 6 (�[S]uggestions from the
individual with a disability may assist the employer in determining the
type of reasonable accommodation to provide.�); cf. Appendix to Part 1630
� Interpretive Guidance on Title I of the Americans with Disabilities Act
(�ADA Interpretive Guidance�), at Section 1630.9 (�[T]he preference [in
reasonable accommodation] of the individual with a disability should be
given primary consideration.�) However, an employer is not required to
provide the precise reasonable accommodation an employee wants, so long
as the employer provides a reasonable accommodation that is effective.
See Reasonable Accommodation Guidance, at 8. The agency providing the
accommodation � not the employee � �has the ultimate discretion to choose
between effective accommodations . . . .� ADA Interpretive Guidance,
at Section 1630.9.
In this case, complainant apparently believed that the accommodation
ultimately offered would not in fact be an �effective� one.
See Complainant's Statement in Support of Appeal (Feb. 13, 1999)
(where he claims that �the �offer' to take a longer lunch would
be counter-productive as swelling often occurs and I can not wear
my prosthesis�). The agency therefore asked that he submit medical
documentation substantiating his need for this specific concession.
See id. (�I was asked to provide medical documentation . . . .�) This was
a permissible request. See ADA Interpretive Guidance, at Section 1630.9
(explaining that �[w]hen the need for an accommodation is not obvious,
an employer, before providing a reasonable accommodation, may require
that the individual with a disability provide documentation of the need
for accommodation�). Complainant refused to comply by submitting any
such medical documentation, however.<3> Consequently, the agency had no
way of knowing for sure whether the shorter lunch break, specifically,
was necessary to prevent or ameliorate complainant's alleged worsening
condition (or whether such condition was in fact worsening at all).
Its refusal to grant the half an hour lunch break exception was
therefore justified. See Reasonable Accommodation Guidance, at 7 (�If
an individual's. . . need for reasonable accommodation is not obvious,
and s/he refuses to provide the reasonable documentation requested by
the employer, then s/he is not entitled to reasonable accommodation.�);
see also Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130,
1137 (7th Cir. 1996) (holding that an employee's failure to respond to
an employer's request for information critical to a determination of an
appropriate reasonable accommodation sheltered the employer from liability
for failing to provide such accommodation); and Steffes v. Stepan Company,
144 F.3d 1070, 1073 (7th Cir. 1998) (citing Beck, and providing largely
the same).
CONCLUSION
For these reasons, we conclude that no disability discrimination occurred
here, and that the FAD at issue must be affirmed.<4>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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 29 C.F.R. �
1614.405; see also EEO MD-110, at 9-18. 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 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted 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 (S0900)
Complainant has the right to file a civil action in an appropriate
United States District Court within ninety (90) calendar days from the
date that complainant receives this decision. If complainant files a
civil action, complainant 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 complainant's case in court. �Agency� or
�department� means the national organization, and not the local office,
facility or department in which complainant works. If complainant files
a request to reconsider and also files a civil action, filing a civil
action will terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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 complainant's 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 entitled
(�Right to File A Civil Action�).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 13, 2002
__________________
Date
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
______________________________
1The Rehabilitation Act of 1973 was amended in 1992 to apply the standards
in the Americans with Disabilities Act to complaints of discrimination
by federal employees or applicants for employment.
2A �qualified individual with a disability� is an �individual with a
disability� who, with or without reasonable accommodation, can perform the
essential functions of the position in question without endangering the
health and safety of the individual or others and who, either (1) meets
the experience or education requirements of the position in question;
or (2) meets the criteria for appointment under one of the special
appointing authorities for individuals with disabilities. 29 C.F.R. �
1614.203(a)(6); see also 29 C.F.R. � 1630.2(m). An �individual with a
disability,� in turn, is one who (1) has a physical or mental impairment
which substantially limits one or more of such person's major life
activities; (2) has a record of such impairment; or (3) is regarded as
having such an impairment. See 29 C.F.R. � 1614.203(a)(1); see also
29 C.F.R. � 1630.2(g). A �physical or mental impairment� could be
(1) any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of various body systems (e.g.,
neurological, musculoskeletal, special sense organs, cardiovascular,
reproductive, digestive, respiratory, genitourinary, hemic and lymphatic,
skin, and endocrine); or (2) any mental or psychological disorder, such as
mental retardation, organic brain syndrome, emotional or mental illness,
and specific learning disabilities. See 29 C.F.R. � 1614.203(a)(2);
see also 29 C.F.R. � 1630.2(h). �Major life activities� include functions
such as caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working. See 29 C.F.R. �
1614.203(a)(3); see also 29 C.F.R. � 1630.2(i).
3We sense from complainant's appeal statement that he felt he was being
singled out, since he was asked to provide medical information about
his need for a half an hour lunch break while other clerks were not.
However, we remind complainant that he was also the only one (as far
as we can tell) who was requesting a reasonable accommodation under the
Rehabilitation Act.
4We advise complainant to seek EEO counseling anew, however, if he
believes (as he now claims on appeal), that the agency is now allowing
non-disabled, similarly-situated employees to take a half an hour lunch
break and is still denying him this shorter break. Such an allegation
could constitute a claim of unlawful �disparate treatment.� Since this
issue was not formally raised by complainant during counseling for the
instant complaint (and was not accepted by the agency for investigation),
we have insufficient information to address the merits of it here.