0120121046
12-12-2012
Andrew C. Wiesner, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Andrew C. Wiesner,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120121046
Agency No. 10-00105-02761
DECISION
On December 24, 2011, Complainant filed an appeal from the Agency's November 17, 2011, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Marine Pipefitter at the Agency's Portsmouth Naval Shipyard facility in Kittery, Maine.
On September 1, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (spinal herniated disc, carpal tunnel, tarsal tunnel, sleep disorder and chronic fatigue) when the Senior Medical Officer at the Agency's medical clinic wrote "early departure from work site to be negotiated between worker and management at their discretion as necessary for administrative purposes" on Complainant's light duty memorandum.
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 EEOC Administrative Judge (AJ). In accordance with Complainant's request, 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.
ANALYSIS AND FINDINGS
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. (November 9, 1999) (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").
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. For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
The record indicates that Complainant worked as a Pipefitter with a shift ending at 3:30 p.m. In workers' compensation documentation dated August 2009, Complainant's orthopedic surgeon indicated he had a permanent lumbosacral condition. On October 20, 2009, Complainant's regular physician requested that Complainant be allowed to leave work 18 minutes early (at 3:12 p.m.) every day. In his note, the physician provided no reason for the requested early departure.
However, in a Limited Duty Memorandum dated October 23, 2009, the Agency's occupational medicine physician (Agency Physician) agreed that Complainant needed to leave at 3:12 p.m. due to medical reasons. Complainant's attorney (Attorney) provided the information to the Agency's Human Resources Office.
Subsequently, in April 2010, Complainant submitted a request for reasonable accommodation requesting that his shift be changed to 6:00 a.m. to 2:30 p.m. He requested the schedule change to allow him to see healthcare providers and attend physical therapy in the afternoon. By letter to the Agency dated April 28, 2010, Complainant's orthopedic surgeon stated Complainant was undergoing swim exercises as a rehabilitation effort to improve his functional abilities and requested that Complainant be granted the shift change to accommodate this effort.
On May 24, 2010, the Agency Physician issued a Limited Duty Memorandum that stated, among other things, that Complainant needed to leave 18 minutes early at 3:12 p.m. for medical reasons. The memorandum also provided a number of work restrictions including no walking long distances, no use of repetitive motion/vibrating tools, no use of pipe wrenches, and no overtime.
Later, on July 6, 2010, the Agency's Senior Medical Officer issued an updated Limited Durity Memorandum which reaffirmed Complainant's work restrictions of no walking for long distances, no use of repetitive motion/vibrating tools, and no overtime, and added certain lifting restrictions. With regard to the early departure, the new memorandum stated: "early departure from work site to be negotiated between worker and management at their discretion as necessary for administrative purposes."
Complainant sought EEO counseling because he believed that the Senior Medical Officer improperly advised management that if they wanted to allow Complainant to leave work early, they could, but it was not medically necessary. The record, however, indicates that Complainant was consistently allowed to leave work early in order to attend therapy and medical appointments. There is no evidence to showing that management failed to allow a requested early departure or that Complainant missed any therapy or other medical appointments because of the actions of management. .
Therefore, it appears that Agency management was providing Complainant with reasonable accommodation of his disability by allowing him to leave early in order to attend physical/swim therapy and other medical appointments. Complainant would have preferred a shift change with an earlier quitting time. However, it has been the Commission's position that if more than one accommodation is effective, "the preference of the individual with a disability should be given primary consideration; however, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations." 29 C.F.R. � 1630.9; see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 9 (revised October 17, 2002); Polen v. Dep't of Defense, EEOC Appeal No. 01970984 (January 16, 2001). Thus, while Complainant may be entitled to an effective reasonable accommodation under the Rehabilitation Act, he is not entitled to the accommodation of his choice.
In the case at hand, Complainant requested a change in his work schedule that would allow him to get to work early so that he could depart early to attend therapy and medical appointments. Rather than granting this accommodation, the allowed Complainant to leave work early to make his appointments. Therefore, we find that the Agency provided Complainant with a reasonable accommodation even though it was not the exact accommodation he had requested.
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 no violation of the Rehabilitation Act.
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
December 12, 2012
__________________
Date
2
0120121046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121046