0120090555
02-24-2012
Lu Ann Ferguson, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Lu Ann Ferguson,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120090555
Hearing No. 2006-20337-FAA-05
Agency No. 2006-20337-FAA05
DECISION
Complainant filed the instant appeal from an Agency final order, dated October 15, 2008, concerning an equal employment opportunity (EEO) complaint claiming 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the relevant time, Complainant worked as an Air Traffic Controller Specialist (ATCS) at the Agency's Fort Worth ARTC Center, in Texas. In the fall of 2004, Complainant began to experience fatigue. Consequently, in December 2004, she requested, and was granted, a part-time (32-hour) schedule.1 Complainant worked the part-time schedule from December 2004 through March 2005. Complainant voluntarily resumed a full-time schedule, in March 2005, as she was three years away from retirement and wanted to obtain her "high three". However, she continued to suffer from fatigue.
In July 2005, Complainant went to her physician regarding her symptoms. For the next several months, her doctor tried to diagnosis her condition. Complainant's doctor believed that Complainant had Epstein-Barr virus (EBV), or mononucleosis. However, he continued testing for other causes and trying different medications. During this time, Complainant's leave requests were granted.
As an ATCS, Complainant's medications were subject to review by Agency doctors to ensure that she was alert and any conditions or side affects would not interfere with her ability to do her job. In August 2005, Complainant was prescribed Humira. Consequently, the Agency assigned her to administrative duties for thirty days. Complainant found her new duties to be less stressful and beneficial to her conditions. At the expiration of the assignment, Complainant submitted a request seeking a modification, for medical reasons. Complainant's letter, dated August 24, 2005, also included a note from her physician. Complainant's request was denied. The Personnel Officer determined that because Complainant no longer required a waiver for being on Humira,2 her other medical issues did not preclude her from performing a regular, full-time schedule.
Complainant found alternative methods to try to resolve her situation. For example, she traded work schedules with other employees. She also requested sick leave (SL) or leave without pay (LWOP), which the Agency continued to grant. However, the Agency was experiencing a growing, broad concern regarding leave abuse at the facility.
On December 12, 2005, Complainant submitted a Department of Labor form, for pre-certification of eligibility under the Family Medical Leave Act (FMLA). Complainant's physician provided only brief answers on the form, but stated that she suffered from Chronic Fatigue Syndrome (hereinafter "CFS) and chronic mononucleosis; and that she needed rest, nutrition, exercise, and medication. The request seemed to seek intermittent leave. Without providing explanation, on January 1, 2006, the Agency denied Complainant's request. Therefore, the leave requests that followed were approved by the Agency, but disapproved for purposes of FMLA coverage.
Approximately one month later, on February 1, 2006, Complainant was issued a leave restriction letter due to the Agency's assessment of her excessive LWOP, SL, and low SL balance. The restrictions included additional steps Complainant was required to follow in order to have future leave requests approved.
At about the same time, on January 27, 2006, Complainant was prescribed Lexapro for depression. The Agency doctor determined this to be a disqualifying drug, and Complainant lost her certification on February 13, 2006, and she never worked as an ATCS again. Instead, from February 2006 until September 2006, Complainant performed administrative duties or used leave. In November 2007, OPM approved her application for disability retirement based on CFS.
The day after she lost her certification, Complainant contacted an EEO Counselor. She believed that the Agency failed to provide her a reasonable accommodation and subjected her to unlawful reprisal. Informal efforts to resolve Complainant's concerns were unsuccessful. Subsequently, Complainant filed the instant formal complaint.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Beginning on March 26, 2008, the AJ heard from eight witnesses over three days. On September 16, 2008, he issued a decision finding no discrimination.
As an initial matter, the AJ set forth the claims as redefined, following motions from the parties and his determination that some of the matters had been previously resolved by grievances. The claims were framed as follows:
(1) Whether Complainant was discriminated against based on disability (chronic fatigue syndrome) when she was denied a reasonable accommodation in that on January 5, 2006, the Agency denied her request for leave and ordered her not to request FMLA leave or LWOP in the future.
(2) Whether Complainant was discriminated against based on disability and reprisal, when on February 1, 2006, the Agency denied all her leave requests.3
According to the AJ, the matter before him related to a failure to accommodate. Complainant argued that she made several requests for a reasonable accommodation, but the Agency did not engage in the interactive process and provide the requested accommodation. Complainant contended that the denial of the accommodation aggravated her condition, leading to her disqualification and medical retirement.
In contrast, the Agency asserted that Complainant was not a person with a disability and that she never requested an accommodation. Further, the Agency argued that Complainant did not establish she was eligible for a reasonable accommodation and that she was not harmed when she was not granted one.
Regarding claim (1), the AJ first considered whether or not Complainant had requested an accommodation. The AJ found that, on at least two occasions, Complainant did indeed make a request for a reasonable accommodation. The AJ determined the August 2005 letter and the December 12, 2005 FMLA certification request constituted requests for an accommodation. Further, the AJ noted that between August and December 2005, Complainant may have also made additional oral requests.
Next, the AJ found that the Agency did not engage in the interactive process. The AJ stated: "In fact, I find that the Agency's failure was egregious and constituted a clear violation of the Rehabilitation Act and the ADA." According to the AJ, Complainant's August 24, 2005 request was reviewed by six supervisors, three managers, two personnel officers, and one Agency doctor. However, none of those Agency officials recognized that Complainant was making a request for a reasonable accommodation. The AJ found that Complainant own references to FMLA did not excuse the Agency from reaching its own conclusion that the request also encompassed the ADA. Moreover, the AJ explained that the December 12, 2005 form should have put managers on notice that Complainant was seeking an accommodation based on her medical condition.
However, the AJ finally considered whether there was a reasonable accommodation available that would have allowed Complainant to perform her job. The AJ identified five possible accommodations: (1) light duty, (2) flex-time, (3) intermittent leave approved in advance, (4) extended leave, or (5) modification to schedule to avoid shift work (i.e work in evenings, night or early morning). The options of light duty and flex-time were found by the AJ to be unreasonable. Next, the remaining accommodations were examined to determine if they could or would have been effective. This required an analysis of what impairment was to be accommodated. The AJ considered both Complainant's depression (and the medication prescribed) and the fatigue she experienced with CFS. In both situations, the AJ determined that the effectiveness of any of the three possible accommodations would be speculative. For example, the AJ found that one could not say that more likely than not, any of the accommodations would have allowed Complainant to perform her job. Further, the AJ highlighted that Complainant "is essentially undiagnosed". Doctors did not know what was causing her symptoms, or when or if Complainant would improve. The AJ reasoned that one could not find that any of the potential accommodations would have been effective. The AJ found that as a consequence, Complainant was not denied a reasonable accommodation in violation of the Rehabilitation Act.
With respect to claim (2), the AJ found that Complainant was not denied any leave requests on February 2, 2006. Moreover, regarding the basis of reprisal, the Agency noted that Complainant's EEO Counselor contact occurred after the leave restriction letter was issued.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
Denial of Reasonable Accommodation
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. Reasonable accommodation includes modification to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act. (October 17, 2002) (Reasonable Accommodation Guidance).
A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). "[T] he word 'accommodation' .... conveys the need for effectiveness." Id. "An ineffective 'modification' or 'adjustment' will not accommodate a disabled individual's limitations." Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. See Guidance.
For the purposes of analysis only, we shall assume arguendo that Complainant is an individual with a disability.
Based on our review of the instant record, we find that the AJ's factual determinations are supported by substantial evidence. Complainant did request a reasonable accommodation, more than once. As noted above, the Agency argues that Complainant failed to cite the ADA and did not request a reasonable accommodation. The Agency is reminded, however, that under the Rehabilitation Act, an employee is not required to use the "magic" words "reasonable accommodation" when making a request. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002) at Q.1. Instead, the employee or the employee's representative need only inform the agency that he or she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. United States Postal Service, EEOC Appeal No. 01A44720 (Feb. 24. 2006). The record contains several instances where management officials should have been on notice that Complainant was seeking a reasonable accommodation. Stemming from its belief that Complainant did not request an accommodation, the record reflects that the Agency failed to engage in the interactive process.
However, the Commission finds that the AJ nevertheless properly determined that Complainant failed to identify an effective accommodation that would have enabled her to perform the essential functions of her job as an ATCS. Light duty would have resulted in less than fully productive work. As an ATCS, flex time was unreasonable given the time-dependant nature of the position. As for modifications to leave usage or her schedule, there was insufficient evidence to show such accommodations would have been effective. In response to inquiries by the AJ, Complainant testified that she requested a month of administrative duties and intermittent leave as accommodations. Complainant's request for a month of administrative duties was based on her expectation that her condition would improve after that time and she would be able to return to ATCS duties thereafter. The record shows, however, that she did not get better. As observed by the AJ, Complainant and her doctors seemed to be unsure what was causing her condition and when or if she would improve. Therefore, one can only speculate what would have been an effective accommodation. Complainant has not met her burden of establishing that the Agency failed to reasonably accommodate her.
Regarding claim (2), the denial of leave requests on February 1, 2006, the Commission finds that the AJ's finding of no discrimination is supported by substantial evidence. The record does not indicate that Complainant was denied leave at that time. Complainant provides no contentions on appeal to dispute the conclusion.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby AFFIRM the Agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
February 24, 2012
__________________
Date
1 Complainant acknowledges that this request did not reference any medical issues, as she herself had not sought medical treatment and was unaware of her condition at that time.
2 After thirty days, it was determined that the Humira did not result in side-effects that would have an impact upon her job duties.
3 In the analysis portion of his decision, the AJ explains that while the claim is narrowly framed regarding a particular date, the parties and his decision have treated the matter much more broadly. "[I]t is my view that this issue can be interpreted as encompassing the Complainant's claim that from August 2005 through February 2006 the Agency failed to accommodate her request for a reasonable accommodation. . . ."
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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