Jerome R. Moos, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionJun 24, 2004
01a33798 (E.E.O.C. Jun. 24, 2004)

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