01a33798
06-24-2004
Jerome R. Moos, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Jerome R. Moos v. Social Security Administration
01A33798
June 24, 2004
.
Jerome R. Moos,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A33798
Agency No.02-0031-SSA
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. For the following reasons, the
Commission affirms the agency's final decision.
ISSUE PRESENTED
The issue presented herein is whether complainant has proven by
preponderant evidence that the agency discriminated against him on the
basis of disability (cerebral palsy) when he was denied a reasonable
accommodation in the form of an ergonomic wheelchair.
BACKGROUND
The record reveals that complainant, a Claims Representative (GS-11)
in the agency's facility in Eau Claire, Wisconsin, sought EEO counseling
and subsequently filed a formal complaint on October 22, 2001, in which
he alleged what has been identified as the issue presented. The complaint
was accepted for investigation, and at the conclusion thereof, complainant
was informed of his right to elect a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision from the agency.
When complainant failed to make an election within the specified time
period, the agency, pursuant to our regulations, issued a final decision
on the matter.
In its decision, the agency concluded that complainant had not been
discriminated against as alleged. Specifically, the agency concluded
that complainant was not entitled to an ergonomic wheelchair because
it constituted a personal item, and pursuant to EEOC policy guidance,
agencies are not required to provide such items in order to accommodate
employees under the Rehabilitation Act.
ANALYSIS AND FINDINGS
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. �1630.9.
The Commission also notes that an employee must show a nexus between
the disabling condition and the requested accommodation. See Wiggins
v. United States Postal Service, EEOC Appeal No. 01953715 (April 22,1997).
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, complainant must demonstrate that he is an
"individual with a disability." EEOC Regulation 29 C.F.R. � 1630.2(g)
defines an individual with a disability as one who: 1) has a physical
or mental impairment that substantially limits one or more of that
person's major life activities, 2) has a record of such impairment, or
3) is regarded as having such an impairment. EEOC Regulation 29 C.F.R. �
1630.2(h)(2)(i) defines "major life activities" as including the functions
of caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working. Complainant also
must demonstrate that he is a "qualified" individual with a disability
within the meaning of 29 C.F.R. � 1630.2(m). The term �qualified�
individual with a disability, with respect to employment, is defined
as a disabled person 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). Both parties, the agency and complainant, agree
that complainant is a �qualified individual with a disability� and we
shall presume that to be the case.
Now that it has been presumed complainant is an �qualified individual
with a disability,� and therefore entitled to a reasonable accommodation
if necessary to help him perform the essential functions of his job,
we turn our attention to whether the agency was required to provide him
with an ergonomic wheelchair. Information in the file reveals that the
pertinent aspects of complainant's job, namely, those aspects which he
alleges he needs a wheelchair in order perform, involves photocopying,
filing, retrieving documents, and getting to and from interview stations.
Complainant alleges that because his disability adversely affects his
ability to walk and/or move around the office, he used his own personal
wheelchair to assist him in these regards. When the wheelchair broke,
he requested that the agency provide him with one. The agency's Office
of Civil Rights and Equal Opportunity (OCREO) denied the request on the
grounds that a wheelchair, in complainant's case, constituted a personal
item, and as such, the request was something to which he was not entitled.
In response, complainant argues that the wheelchair provided by him was
not a personal item because at the end of his tour of duty each day,
the wheelchair remained in the office. That notwithstanding, complainant
does not argue that he does not use the assistance of a wheelchair when
at home or during off duty hours. His first line supervisor confirmed
that complainant's personal wheelchair remained in the office, but she
also stated that he had another one for home use. Therefore, it is the
ruling of the Commission that complainant's request for a wheelchair was
tantamount to asking the agency to provide him with a personal use item.
The agency was correct in noting that EEOC's regulations generally do
not require agencies to provide personal use items such as eyeglasses
and wheelchairs. See Cass v. Department of Veterans Affairs, EEOC Appeal
No. 01982551 (February 17, 2002). Consequently, the Commission holds
that complainant was not discriminated against when his request for an
ergonomic wheelchair was denied. In so doing, we note that there is
insufficient evidence from which to conclude the ergonomic nature of the
wheelchair would have allowed complainant to perform his job any better
than a regular wheelchair would have.
Moreover, assuming arguendo that complainant was entitled to
a wheelchair, the agency's refusal to provide him with one was
not violative of the Rehabilitation Act. When the agency denied
complainant's request for a wheelchair, it indicated to complainant
that he could use a personal assistant to help him with those duties
he could not perform. Complainant's supervisor indicated that such an
assistant was available for complainant's use, but complainant did not
feel he needed the assistant. In his affidavit, complainant argues that
a personal assistant would have been much more expensive, and that the
agency should have provided him with a credit for the cost the agency
would have paid for the personal assistant so he could apply that credit
toward the purchase of an ergonomic wheelchair. In accommodation cases,
the Commission has repeatedly ruled that employees are only entitled to
an effective accommodation, not the accommodation of his or her choice.
See La Pointe v. United States Postal Service, EEOC Appeal No. 01992460
(June 27, 2002). Since the personal assistant would have performed those
duties (photocopying, filing, etc.) of which complainant was not capable,
we find that the assistant would have been an effective accommodation,
even if it was not the accommodation of complainant's choice.
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal, the agency's response thereto, and arguments and evidence not
specifically addressed in this decision, we affirm the agency's finding
of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 24, 2004
__________________
Date