01A12367
06-26-2002
Linda Brooks, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, (U.S. Patent and Trademark Office), Agency.
Linda Brooks v. Department of Commerce
01A12367
June 26, 2002
.
Linda Brooks,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
(U.S. Patent and Trademark Office),
Agency.
Appeal No. 01A12367
Agency No. 99-56-00823
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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.<1> The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. Complainant alleged that she was
discriminated against on the basis of disability (stroke) when: (1) the
agency refused to assign her a less demanding docket; and (2) the agency's
EEO Office delayed processing her reasonable accommodation request.
For the following reasons, the Commission AFFIRMS the agency's FAD.
The record reveals that during the relevant time, complainant was
employed as a Patent Examiner at the agency's Technology Center in
Arlington, Virginia. The record reflects that on January 29, 1999,
complainant had a stroke, and her doctors initially noted decreases
in auditory comprehension, verbal expression, reading comprehension,
verbal expression, reading comprehension, reduced attention and problem
solving skills. Complainant's physicians noted that her deficits were
moderate to mild and were most apparent when she worked with lengthy
material or complex information, she suffered some pain and weakness in
her right hand and leg and that her prognosis was good. On March 19,
1999, complainant submitted a request for reasonable accommodation, in
which her physician recommended that she work part-time and be relieved
of production requirements temporarily. Complainant returned to work
on March 15, 1999, and although she requested that she be taken off
production, her supervisors declined to formally waive the production
requirement but told her condition would be factored in to her yearly
evaluation.
On May 6, 1999, complainant proposed to her first-level supervisor
(S1) that instead of waiving the production requirement, the agency
could accommodate her by assigning her to a docket with shorter,
simpler searches, as long and complex searches exacerbated her mental
and physical fatigue. S1 responded that she had little flexibility in
reassigning cases. On June 29, 1999, in response to the request of the
agency's EEO Specialist, complainant supplied a list of dockets that
she felt she could perform. On July 15, 1999, complainant's physician
wrote that complainant had probably recovered to the extent that she
was able, and that she would probably always experience some difficulty
with verbal processing. Further, the physician stated that remaining
in complainant's current position would be incompatible with long-term
good health, due to headaches and the stress of performing a job for
which she was no longer adequately equipped.
On October 28, 1999, the agency's EEO Officer asked complainant's primary
physician for a medical opinion regarding whether complainant's condition
affected one or more major life activities. The physician responded
that complainant had a permanent impairment in the speed with which she
could process information, and as a result, the EEO Officer opined that
complainant was not entitled to a reasonable accommodation as she did
not demonstrate that she was substantially limited in any major life
activities. Nonetheless, the record reflects that in November 1999,
another docket requiring shorter searches became available and complainant
was reassigned to the new docket in a new art unit.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on October 5, 1999.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing, but on September 6, 2000, complainant
withdrew her request. As a result, the agency issued a FAD.
In its FAD, the agency noted that complainant had a stoke in January 1999
which left her with a permanent impairment which affected her endurance
in completing tasks. The FAD further noted that complainant's medical
assessments indicated that she is largely capable of functioning in the
non-vocational aspects of her life, and that her limitations were most
apparent when she must process complex oral and verbal information.
Initially, the FAD found that because complainant is limited in her
ability to perform any job that requires rapid processing of complex
information, she is substantially limited in the major life activity
of working. Addressing complainant's claim that she was not reasonably
accommodated by the agency, the FAD found that the agency made a good
faith effort to accommodate her. The FAD noted that although the agency
did not grant complainant an immediate response to her request for a more
favorable docket, it offered alternative measures designed to reduce
the strain of a production environment, such as part-time work, aid in
typing, frequent breaks, and flexible use of leave. The FAD noted that
the agency only learned in June or July 1999 that complainant's condition
was permanent, and thus this was the earliest point at which any actual
duty to reasonably accommodate complainant began. The FAD noted that the
employer need only provide reasonable accommodations that make it possible
for the disabled employee to perform the essential functions of the job.
Further, the FAD found that the agency was not obligated to provide
complainant with an assignment which would allow her to easily make the
production numbers she desired. Complainant has made no new contentions
on appeal, while the agency has requested that we affirm its FAD.
Initially, the Commission notes that the FAD conceded that complainant
was an individual with a disability, as she was substantially limited in
the major life activity of working. Accordingly, for purposes of this
decision, we will assume arguendo that complainant is an individual with
a disability and address whether the agency properly provided complainant
with a reasonable accommodation. Complainant's primary contention is
that she was dissatisfied that the agency would not formally waive the
production requirements of a Patent Examiner upon her return to work.
The Commission, however, has held that an employer is not required
to lower production standards - whether qualitative or quantitative-
that are applied uniformly to employees with and without disabilities.
See 29 C.F.R. � 1630.2(n); Enforcement Guidance: Reasonable Accommodation
and Undue Hardship Under the Americans With Disabilities Act (March 1,
1999), at 4 (�Enforcement Guidance�). We have held that an employer
may have to provide reasonable accommodation to enable an employee with
a disability to meet the production standard. Id. Moreover, while an
employer is not required to eliminate an essential function or lower a
production standard, it may do so if it wishes. Id.
The law on production requirements notwithstanding, and even though the
agency declined to formally waive the production requirement of the Patent
Examiner position, it nonetheless offered several alternatives which
were consistent with the recommendations of complainant's physicians.
Specifically, the agency offered complainant part-time work, help with
typing, frequent breaks and use of leave. The Commission finds that
these proposed accommodations were designed to allow complainant to meet
the production standard of her position without waiving the production
requirement or giving complainant a new docket.
Further, upon complainant's return to work, S1 stated that complainant
was performing in an exemplary manner and was in fact performing
her usual art examining docket without any of the problems that her
physicians anticipated. While complainant did have fatigue and headaches,
complainant's supervisors were aware of her problem and allowed her to
rest as she needed, in addition to taking into account her diminished
capacity for production. Further, the agency agreed to take complainant's
condition into account when her performance was evaluated. The Commission
notes that an employer may choose among reasonable accommodations as long
as the chosen accommodation is effective and it appears from the record
that the accommodations provided by the agency following complainant's
return to work allowed her to satisfactorily perform the essential
functions of her art docket. Enforcement Guidance, at 17.
In addition, the Commission notes that complainant requested a less
complex docket with shorter patent searches in May of 1999, but S1
denied this request as she did not want to disrupt the other Examiners'
assignments. We note that complainant's supervisors stated that they did
not want to make any permanent changes in her docket as her physicians
stated her condition was subject to change during the first six months
of her recovery. The Commission notes that in addition to the fact that
an employer is not required to lower production standards, an employer
is also not required to reallocate or eliminate essential functions
of a position in association with an accommodation request. Harris
v. Department of the Navy, EEOC Petition No. 03930116 (December 16, 1993);
Enforcement Guidance, at 4. Thus, in response to complainant's request
for a less complex docket, the Commission finds that as patent searches
are an essential function of the Patent Examiner position, complainant
was not entitled to a reallocation of this duty. Nonetheless, we note
that in November 1999, the agency reassigned complainant to another
Examiner position, consistent with her request, when it became available.
Finally, we note that the FAD conceded that the facility's EEO Manager
took no action on complainant's case from August 6, 1999 to October 28,
1999, ostensibly as he was waiting for medical documentation as to the
permanency of complainant's condition. This handling of the matter
was less than ideal, and we urge the agency to respond to accommodation
requests in a more timely manner in the future. Enforcement Guidance,
at 11. However, as stated by the FAD, even if the Manager had contacted
complainant or her physician sooner, she would not have obtained a
different result.<2> Furthermore, while the agency did not grant
complainant an immediate response to her request for a less complex
docket, it did offer alternative measures geared toward reducing the
stress from production quotas. In addition, we agree with the FAD's
finding that the employer was only required to provide complainant with
an accommodation which would make it possible for her to perform the
essential functions of her job. As a result, we agree with the FAD's
finding that the agency's actions were designed to allow complainant to
adequately perform her duties as a Patent Examiner. Further, while the
record shows some delay in addressing complainant's medical documentation,
we find the record is devoid of evidence showing that the facility acted
with discriminatory animus in response to complainant's accommodation
request. Therefore, after a careful review of the record, including
arguments and evidence not specifically addressed in this decision,
we affirm the FAD.
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 26, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 We note that the record indicates that after complainant was reassigned
to her new position, she continued to experience fatigue and headaches,
and still needed rest breaks during the day. Investigative Report, at 27.