01A10556
06-07-2002
Theresa J. Anson, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Theresa J. Anson v. Department of the Navy
01A10556
6/7/02
.
Theresa J. Anson,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A10556
Agency No. DON 99-60201-002
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. and 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.
The record reveals that during the relevant time, complainant was
employed as an Office Automation Assistant, GS-0326-04 at the agency's
Naval Station, in Bayport, Florida. Complainant sought EEO counseling
and subsequently filed a formal complaint on October 29, 1999, alleging
that she was discriminated against on the bases of disability (Attention
Deficit Disorder) and reprisal for prior EEO activity when beginning in
February 1998 and continuing to the date she filed her formal complaint,
the Family Services Director and the Executive Director refused to
reasonably accommodate her when they would not allow her to use a vacant
office for at least two hours per day and refused to explain why this
accommodation constituted undue hardship.
As an Office Automation Assistant, complainant was required to input
Transition Assistance Management Program (TAMP) data for reporting and
accounting purposes, assist TAMP clients with the operation of TAMP
computer program software, maintain �Welcome Aboard� packets and videos
from other installations, assist the Relocation Manager (RM) and provide
assistance at the reception desk. In a letter dated October 29, 1997,
complainant's physician explained that Attention Deficit Disorder (ADD)
is a medical condition created by intrinsic chemical disregulation in the
central nervous system. The physician noted that as long as there was
no multiple inputs and differing expectations, complainant could perform
the duties in her position description. He added that individuals with
ADD may have intermittent problems with focus and concentration that
would be exaggerated when stress, inconsistency, lack of structure or
supervision, or other external factors may intervene. He stated that
complainant's ability to focus will be enhanced by having a quiet office
setting which is separated from turmoil, business, chaos, or significant
personal interaction.
On November 25, 1997, complainant's psychologist recommended several
accommodations to the agency. They are:
An organized and quiet environment in which to work. Organizationally,
requests should be made in writing and consistency of rule and policies
and procedures need to be employed in these requests;
A special time allotment may need to be given to complete the work
assigned. Work assignments need to be given well prior to the date of
completion requested so that [complainant] is afforded more than ample
time to do her work;
Complainant's environment must be free of distractions which may suggest
her own office or a private cubicle in which she can work;
Providing complainant with a regular daily schedule of duties and
expectations.
Assigning a peer coach to complainant, who would assist her in tracking
her completion of duties and assisting her in other organizational and
task related matters;
Time off for therapeutic sessions; and
Resolving perceived conflicts between complainant and her co-workers,
supervisors and subordinates
Based on a subsequent request for accommodation from complainant dated
February 23, 1998, which in essence restated most of the accommodations
suggested by her psychologist, the agency agreed to provide complainant
with the following accommodations on February 28, 1998:
Return complainant to her TAMP position;
Allow complainant to perform all of the major duties and functions of
her position description, but limit her time at the front desk;
Allow complainant to perform her work out of two work stations, the
computer room and the RM's office;
Allow complainant to vary her start time as long as she worked an eight
hour day;
The RM would serve as complainant's peer coach/work leader, and would
provide her with written daily schedule of priorities, expectations,
and deadlines; and
Continue to approve complainant's leave requests.
On April 21, 1998, complainant sent a memorandum to the Director of
the Family Services Center (FSC) requesting further accommodation.
Among other things, complainant indicated that due to privacy concerns,
she did not want to have the RM as her peer coach any longer. Complainant
also indicated that her previous accommodation request for a private
or semi-private office was supported by her physicians. Accordingly,
she requested permission to use the office of the Transitioning Program
Manager when he left for a new position and permission to report directly
to the Acting TAMP Manager. In response to complainant's April 21st
memorandum, the FSC Director indicated that she was cancelling the peer
coach arrangement between complainant and the RM, but indicated that
complainant should stay at her current work site to help the customers
in the computer room.
On November 24, 1998, the FSC Director proposed to re-assign complainant
to the FSC front desk, on a trial basis to greet and refer customers.
It was indicated that before such a reassignment could occur, the
agency needed written approval from complainant's doctor. Ultimately,
complainant moved to the front desk, but she never did submit her
doctor's approval or consent to such an assignment. On March 11, 1999,
complainant was taken from work to the emergency room of a medical
center in Jacksonville Beach with chest pains and shortness of breath.
In a letter dated June 27, 1999, complainant's physician indicated
that subsequent to complainant's ADD diagnosis, a sequence of events
related to complainant's employment, led to emotional deterioration.
In this letter, complainant's physician opined that complainant was
totally disabled and unable to return to work. As of the date that
complainant gave her affidavit to the EEO Investigator she remained on
leave without pay status. In her affidavit complainant indicated that
the agency's effort to delay or circumvent the accommodation process,
resulted in a decline of her emotional and professional wellbeing.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency found that complainant established a prima
facie case of reprisal. The agency also conceded that complainant is a
disabled person. However, the agency states that it provided complainant
with accommodation which allowed her to perform the essential duties of
her position. In light of its conclusion that it took various steps to
accommodate complainant's disability, the agency held that complainant
failed to establish a prima facie case of disability discrimination.
In the alternative, the agency noted that even if it could be inferred
that complainant was a qualified individual with a disability, it had
legitimate non-discriminatory reasons for its actions which complainant
failed to prove were pretext for discrimination. Specifically, the agency
argued that it provided complainant with all of the accommodations that
she requested and as recommended by her psychiatrist and psychologist.
In this regard, the agency noted that it offered to place complainant in a
semi-private office with the Relocation Manager, limiting complainant's
time at the front desk as much as possible, allowing her to operate
out of two work stations, granted her flexibility in starting time and
assigned the Relocation Manager to serve as complainant's work leader
and peer coach.
Complainant raises no new contentions or arguments on appeal. The agency
requests that we affirm its FAD.
ANALYSIS AND FINDINGS
As a threshold matter, complainant must establish that she is a
�qualified individual with a disability� within the meaning of the
Rehabilitation Act.<1> An �individual with disability� is a person
who has, has a record of, or is regarded as having a physical or mental
impairment which substantially limits one or more of that person's major
life activities, i.e., caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
See, 29 C.F.R. � 1630.2(j).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner, or duration under which an individual can perform
a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability
to perform a major life activity must be restricted as compared to
the ability of the average person in the general population to perform
the activity. Id.
In the instant case, the agency concedes in its final agency decision
that complainant is a disabled person. Thus, the gravamen of this case
is whether complainant is a qualified person with a disability. 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). In its
FAD, the agency conceded that �it can be inferred that [complainant] was
a �qualified individual with a disability.'� Consequently, our analysis
will focus on whether the actions taken by the agency to accommodate
complainant's disability were sufficient and reasonable to meet the
burden imposed upon it by the Rehabilitation Act.
In its FAD the agency maintained that it granted complainant all
of the accommodations that she requested and as recommended by her
psychiatrist and psychologist. The agency also held that it offered
complainant a semi-private office with the RM, but complainant declined
this offer because she assumed that the RM knew that she reported him
for having pornographic material on his computer. In reviewing the
record evidence, the Commission finds that the agency did in fact meet
its duty to accommodate complainant in this case. Consistent with her
physician's recommendations, the agency allowed complainant to perform
her work out of two work stations, the computer room and the RM's office,
allowed complainant to vary her start time as long as she worked an eight
hour day, assigned a peer coach/work leader to help her prioritize her
assignments and deadlines and reassured her that it would approve her
request for leave so that she could receive therapeutic treatment for
her ADD. The Commission notes that an agency is not required to provide
complainant with every accommodation she requests, but only to provide
her with whatever reasonable accommodation is necessary to enable her
to perform the essential functions of her job. Carter v. Bennett, 840
F.2d 63 (D.C. Cir. 1988). By granting or offering complainant the
aforementioned accommodations, the agency met the obligations imposed
upon it by the Rehabilitation Act.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
appeal, the agency's response, and 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
6/7/02
__________________
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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on the
Commission's website at www.eeoc.gov.