0120141256
10-05-2016
Trey M.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Trey M.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120141256
Hearing No. 570201200844X
Agency Nos. 201224359FAA02
201224793FAA02
DECISION
On February 13, 2014, Complainant filed an appeal from the Agency's January 29, 2014, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Agency discriminated against Complainant based on disability when it allegedly failed to provide him with a reasonable accommodation when it denied his request for full-time telework; and when it later modified his full-time telework to part-time telework.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Specialist at the Agency's Air Traffic Systems Directorate in Washington, D.C. On September 6, 2011, Complainant saw Agency security personnel with gas masks. When he asked them if he needed to obtain a gas mask, someone allegedly responded, "maybe." Later that day, Complainant met with his first line supervisor (S1) (African-American, no disability) to discuss this situation. Complainant stated that due to his condition, post-traumatic stress disorder (PTSD), he was requesting the ability to telework full-time. S1 approved Complainant to telework temporarily, while he obtained medical documentation.
On September 19, 2011, Complainant emailed S1 requesting to work at home full-time as a reasonable accommodation.2 Complainant provided a letter from a doctor (DR1), stating that he recommended that Complainant work from home, and be provided medical leave from September 19-23, 2011. On September 28, 2011, S1 stated that he reviewed the medical documentation, and denied Complainant's request to telework full-time for an indefinite period. S1 stated that he was granting Complainant's request for sick leave, and allowing him to continue telework one day per week. S1 informed Complainant that he expected him to return to the office, once he had exhausted his sick leave. On September 29, 2011, Complainant requested that S1 provide the justification for denying his request. Complainant also submitted a claim for workers' compensation.
On October 5, 2011, Complainant replied to S1 that he did "not see the value to [himself] or the Agency to work one day per week from home," and that he did not believe that he could provide "any further information beyond the recommendations made by [his] doctor." On October 7, 2011, S1 informed Complainant that his medical documentation was inadequate because it did not specify the nature, severity, and duration of his condition; or the limitations of any major life activity. S1 also provided Complainant a letter to present to his doctor outlining the specific information needed to support his request.
On November 1, 2011, Complainant's therapist (T1) generated a report on his condition confirming his diagnosis of PTSD, and recommending treatment. On November 7, 2011, another doctor (DR2) stated that she began treating Complainant on October 14, 2011, and that she reviewed T1's report, and concurred with the information. On November 23, 2011, Complainant's request for workers' compensation was denied due to insufficient evidence. On December 13, 2011, S1 sent Complainant a letter informing him that due to the denial of his workers' compensation claim, his leave would be amended to sick leave, annual leave, or leave without pay (LWOP). On December 14, 2011, S1 sent Complainant another memo instructing him to return to work the next business day, following the receipt of the memo, or he would be considered absent without leave (AWOL).
Complainant provided a letter from T1, dated December 21, 2011, recommending that he either work a reduced work schedule (4 hours per day), or telecommute. On January 12, 2012, S1 sent T1 a letter requesting additional information. Specifically, S1 asked T1: (1) how Complainant's condition substantially limits a major life activity; (2) how his condition impairs him both at work and at home; (3) whether his impairment is permanent or temporary; and (4) if temporary, how long before he can resume normal life activities. Additionally, S1 asked T1 to address how Complainant's condition affects his ability to perform the essential functions of his job; and discuss how her recommendations of part-time work and telework enable him to perform his duties.
Also, on January 12, 2012, S1 sent Complainant a memo stating that the information provided in September and December did not establish that he had a disabling condition; S1 also provided him with a copy of the letter he sent to T1. On January 17, 2012, S1 reiterated to Complainant that he had requested specific medical information; and that a determination on Complainant's reasonable accommodation request was pending receipt of this information.
On February 17, 2012, T1 responded to S1's request for additional information. She stated that since she had previously provided a letter, she was declining to "present confidential and private information" pertaining to Complainant "outside of the office environment." On February 21, 2012, S1 informed Complainant that he was denying his reasonable accommodation request due to insufficient information. S1 stated that if Complainant obtained additional medical information, he could request a reconsideration of the decision.
On February 24, 2012, DR2 provided a letter stating that Complainant "would benefit" from working from home.3 On March 19, 2012, S1 informed Complainant that he was approved for leave under the Family and Medical Leave Act, effective March 5, 2012. S1 noted that the information that T1 provided stating that Complainant could work 4 hours per day conflicted with his statement that he is unable to return to work. S1 instructed Complainant to provide supporting medical documentation. Complainant responded that he would not provide the requested medical documentation, and stated that he would "just stay on LWOP status." On March 21, 2012, Complainant learned that his denial of workers' compensation was affirmed.
On May 10, 2012, S1 informed Complainant that due to realignment, he could accommodate his request to work full-time from home. Complainant returned to work on June 21, 2012, teleworking on a full-time basis. On August 23, 2012, S1 sent Complainant a memo informing him that after two months, he determined that full-time teleworking was not an effective accommodation because Complainant required more direct supervision for his duties. S1 stated that he had been unable to assign Complainant more work because he is not in the office to receive "direct supervision, mentorship, and support." S1 reduced Complainant's telework to two days per week, and stated that the situation would be re-evaluated in six months. On October 17, 2012, S1 sent Complainant another memo informing him that since Complainant is unable to come into the office, that he is not able to perform the essential functions of his job. S1 stated that he would request that the Agency explore a reassignment for Complainant as a reasonable accommodation; and asked him to provide an updated resume, and complete a questionnaire regarding his work experience.
On February 22, 2012, and January 23, 2013, Complainant filed formal EEO complaints alleging that the Agency discriminated against him on the bases of race (African-American) and disability (PTSD) when:
1. Since September 2011, it denied him a reasonable accommodation;
2. On December 14, 2011, S1 notified him that the leave used while his worker's compensation claim was pending was retroactively converted to sick leave, annual leave and leave without pay; and4
3. On August 23, 2012, S1 modified his accommodation from five days of telework per week, to two days per week; and placed him on an LWOP status on the days he did not report to work.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
As an initial matter, the Agency found that Complainant had not established a prima facie case of racial discrimination because he did not offer any comparators who were outside of his protected class and treated more favorably; nor did he provide any evidence upon which to base an inference of racial discrimination. The Agency also found that Complainant had not established a prima facie case of disability discrimination because the record did not show that he had an impairment that substantially limited a major life activity. The Agency also found that Complainant was not regarded as an individual with a disability by any management official.
In regards to Complainant's claim that the Agency discriminated against him when it failed to provide him with a reasonable accommodation, the Agency found that the document he provided did not support his request for indefinite full-time telework. It further found that the requests for additional medical information were warranted. The Agency also found that S1 granted interim accommodations of approving his leave requests. The Agency noted that while S1 did not grant Complainant his requested accommodation of full-time telework, he did approve sick leave and LWOP, which is a form of accommodation. The Agency also noted that S1 provided legitimate, non-discriminatory reasons for denying Complainant's request for full-time telework; and that Complainant had not shown that the reasons were pretext for discrimination. As such, the Agency concluded that Complainant had not shown that he was discriminated against when the Agency did not grant him full-time telework, and when it later modified his full-time telework to part-time telework.
Complainant filed the instant appeal, together with a brief in support of his appeal. The Agency filed an opposition brief on April 14, 2014.
CONTENTIONS ON APPEAL
Complainant makes many arguments on appeal. For example, he argues that from September 19, through October 2011, S1 "failed to move the process" for his request; and that S1 made inconsistent statements regarding the processing of his request. Additionally, Complainant alleges that his medical documents did establish that he was an individual with a disability. Complainant also argues that the Agency did not show an undue hardship when denying his request.
The Agency argues that Complainant had not shown that he was an individual with a disability because his medical documentation did not explain his diagnosis; prognosis; how his condition affected a major life activity; or whether he could perform the essential functions of his job, with or without an accommodation. Additionally, the Agency argues that assuming, arguendo, that Complainant had shown that he was an individual with a disability, his request for 100% telework, with "no end in sight," was not reasonable in light of his duties. The Agency requests that the Commission affirm its final decision finding that the Agency did not discriminate against Complainant on the basis of his disability when it failed to provide him with a reasonable accommodation.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
As an initial matter, Complainant alleged that he was discriminated against on the bases of race, and disability when the Agency allegedly failed to provide him with a reasonable accommodation. However, we note that a claim of a failure to accommodate under the Rehabilitation Act only provides for disability as a basis for alleged discrimination. As such, we will not address Complainant's racial discrimination claim in this decision.
Failure to Provide 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. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an "individual with a disability," as defined by 29 C.F.R. � 1630.2(g); (2) he is a "qualified" individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).
An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such impairment. 29 C.F.R. � 1630.2(g). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. � 1630.2(i). They also include thinking, concentrating, interacting with others, and sleeping. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002 (Mar. 25, 1997).
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 the major life activity must be restricted as compared to the ability of the average person in the general population to perform the activity. Id.
We note that an individual is not entitled to reasonable accommodation when the disability, or need for accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer. See Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 16, 2012). In this case, we find that Complainant's condition is not obvious, and that he did not provide sufficient medical documentation in support of his request to telework full-time. Despite repeated attempts by S1 to obtain the necessary medical information, Complainant did not provide answers to the specific questions to establish that his condition substantially limited any major life activity. The record shows that T1 stated that she was "declining" to provide responses to S1's questions.
Complainant argues that the provided medical documentation established that he is an individual with a disability because he is substantially limited in "working". However, not being able to work in a specific location does not constitute a substantial limitation in the major life activity of working. See Groshans v. Department of the Navy, EEOC Appeal No. 03950109 (February 1, 1996) (individual with severe allergy that had anaphylactic reactions who could work anywhere but one office building was not substantially limited in the ability to work). Accordingly, we find that Complainant had not established that he was an individual with a disability entitled to a reasonable accommodation.
Complainant also alleges that S1 failed to engage in the interactive process for his reasonable accommodation request in September and October 2011; however, we find that S1 interacted with Complainant when he informed him of the need to obtain additional medical information on September 28, 2011, and October 7, 2011. Even crediting Complainant's argument that S1 provided inconsistent statements regarding the processing of his request, we find that the record does not establish that Complainant provided sufficient medical information to make a determination he was an individual with a disability.
Moreover, we find that the Agency did accommodate Complainant, despite the fact that Complainant had not established that he was an individual with a disability. We note that while the Rehabilitation Act provides that qualified individuals with a disability be granted an effective reasonable accommodation, it does not entitle them to the accommodation of their choice. See Castaneda v. United States Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, Question 9 (rev. Oct. 17, 2002). The record shows that S1 accommodated Complainant when he approved his requests for leave, as needed.
For claim 3, Complainant alleges that the Agency failed to accommodate him when S1 changed his full-time telework to part-time telework. However, we find that Complainant had still not shown that he was a qualified individual with a disability entitled to a reasonable accommodation on August 23, 2012. While S1 called the full-time telework an "accommodation," the record does not show that he granted the full-time telework because he determined that Complainant was a qualified individual with a disability. Rather, when the needs of the office had changed due to realignment, S1 attempted to provide Complainant an opportunity to resume working. When S1 saw that Complainant was unable to perform all of his duties while on full-time telework, he reduced the telework to two days per week.
On appeal, Complainant argues that the Agency did not show undue hardship in denying his request for full-time telework. However, we find that the Agency did not need to show undue hardship because Complainant had not established that he was entitled to an accommodation. Accordingly, we find that the Complainant has not shown that the Agency discriminated against him on the basis of disability when it allegedly failed to provide him with a reasonable accommodation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding that Complainant was not discriminated against based on disability when the Agency failed to provide him with his requested reasonable accommodation for full-time telework; and when it later modified his full-time telework to part-time telework.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_10/5/16_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant was already approved for telework one day per week, pursuant to the Agency's telework policy.
3 While the record contains this medical documentation dated February 24, 2012, there is no indication that Complainant requested a reconsideration of the denial of his request to telework full-time, or that he provided this document to S1.
4 The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (August 5, 2015). In his appeal, Complainant states that he withdrew this claim on January 14, 2013. Accordingly, this decision will not address claim 2.
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