01A14707
12-09-2002
Charles W. Wilson, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Charles W. Wilson v. Department of Labor
01A14707
December 9, 2002
.
Charles W. Wilson,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A14707
Agency No. 9-05-003
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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. 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 Industrial Hygienist, GS-12 at the agency's Chicago North Office,
OSHA, Region 5, Des Plaines, Illinois facility. Complainant sought EEO
counseling and subsequently filed a formal complaint on October 3, 1998,
alleging that he was discriminated against on the basis of disability
(renal failure) when: (1) the agency forced him to take a disability
retirement, effective June 6, 1998, by harassment and threats of AWOL
status; and (2) he was denied a reasonable accommodation to continue work.
At the conclusion of the investigation, complainant was informed of
his 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.
Background
The preponderance of the record supports the following facts: During
the spring of 1997, complainant met with his supervisor (S1) and his
second-line supervisor (S2) and informed them that he was undergoing
peritoneal dialysis. Complainant told his supervisors that he needed
to perform his dialysis during his 30-minute lunch break but that the
process would take longer than 30-minutes. His supervisors approved 75
minutes without requiring complainant to take any leave and asked that
he let S1 know if he needed more time. Complainant did not request any
additional time.
On September 5, 1997, complainant had been approved for Leave without Pay
(LWOP) which was requested to allow him to recover from a severe infection
that he developed from renal failure. On October 27, 1997, complainant
requested 12 weeks of unpaid leave under the Family and Medical Leave Act
(FMLA). Although the medical documentation that complainant submitted
was missing information regarding complainant's medical condition, such
as the onset of his illness and estimated period of his incapacitation,
complainant's supervisors, nevertheless, approved complainant's request.
The 12-week period of FMLA leave ran between October 6, 1997 and December
26, 1997. Complainant was informed that he was expected to return
to work on December 29, 1997. On the morning of December 29, 1997,
complainant called S2 and informed her that he would not be in that day
and would be off from work for another 3-4 weeks due to the fact that
he had switched from peritoneal dialysis to hemodialysis. S2 placed
complainant on Absent without Leave (AWOL) status pending receipt of
proper medical documentation. Later that day, complainant's physician
provided medical documentation to S2 indicating that complainant may be
able to return to work on January 26, 1998, however he recommended that
upon complainant's return, he should only work three days per week.
Complainant's physician did not specify a medical reason why this
part-time work schedule was recommended, nor did he state how long he
was recommending complainant to stay on this schedule. S2 approved
additional leave up to January 23, 1998. However, on January 16,
1998, S2 sent a memorandum to complainant advising him that if he or
his physician believed that his particular medical condition would
qualify him as a qualified individual with a disability entitled to a
reasonable accommodation, that complainant needed to formally make a
request for a reasonable accommodation. Along with this memorandum,
S2 sent complainant the medical requirements of his position and a
position description. S2 asked complainant to get his physician to
respond to questions listed in the �standard for medical documentation�
she provided. S2 also informed complainant that upon receipt of the
requested information, she would then render a decision as to whether
or not an accommodation was possible. Thereafter, S2 never received a
written or oral request for a reasonable accommodation.
On January 26, 1998, complainant called S1 to inform her that he was still
in the hospital and could not return to work. Since complainant had yet
to send in the requested medical documentation, S2 called complainant at
the hospital to obtain additional information. The hospital informed
S2 that complainant was discharged. S2 then called complainant at
home and left a message for him to call her back. Approximately, one
hour later, S2 received a fax from complainant's physician indicating
that complainant had been discharged from the hospital on January 21,
1998 and that he would probably return to work on February 9, 1998.
S2 again called complainant at home and left a message asking him to
call her back. Complainant never returned S2's phone call.
Complainant was advised that he was placed on AWOL on January 26, 1998
and would remain on AWOL until he returned to work. On February 12,
1998, complainant called the office and informed S1 and S2 that he had
fluid build-up around the heart, problems with dialysis, and would have
to be on antibiotics for the next six months, which left him exhausted
and unable to work. Complainant also explained that he had met with his
physician and after discussing his condition with his doctor, complainant
decided not to return to work and to file for disability retirement.
Final Agency Decision
In its FAD, the agency concluded that it accommodated complainant's
numerous requests for leave from October, 1997 through January, 1998,
despite complainant's failure to provide adequate medical documentation.
In January, 1998, complainant was advised by management that if he
believed that he was an individual with a disability and needed additional
leave or other accommodations, he would be required to provide medical
documentation requesting the specific type of accommodation needed and
the medical basis for such request. The agency concluded that since
complainant failed to request a reasonable accommodation, he was not
denied a reasonable accommodation. In addition, the agency concluded
that complainant failed to prove that he was subjected to a hostile work
environment or was forced into retiring on disability.
Complainant presents no arguments on appeal.
Analysis and Findings
Issue 1 - Harassment and Constructive Discharge Claim
With respect to complainant's harassment and constructive discharge
claims, we note that harassment is actionable only if the harassment
to which the complainant has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13,
1997).
In order to prove disability-based harassment, complainant must prove:
(1) that he is a member of a statutorily protected class; (2) that he was
subjected to unwelcome harassment; (3) that the harassment complained of
was based on his disability; (4) the harassment had the purpose or effect
of unreasonably interfering with his work performance and/or creating
an intimidating, hostile, or offensive work environment; and (5) there
is a basis for imputing liability to the employer. Flowers v. Southern
Reg'l Med. Servs., Inc., 247 F.3d 229, 235-36 (2001).
In order to prove constructive discharge complainant must prove that:
1) a reasonable person in complainant's position would have found the
working conditions intolerable; 2) the conduct causing the intolerable
working conditions is an EEO violation; and 3) complainant's resignation
was caused by the intolerable working conditions. Taylor v. Army &
Air Force Exchange Service, EEOC Request No. 05900630 (July 20, 1990);
Perricone v. United States Postal Service, EEOC Request No. 05900135
(June 11, 1990).
Assuming that complainant is an qualified individual with a disability,
we find that complainant has failed to prove, by a preponderance of
the evidence, that he was subjected to a hostile work environment
that was sufficiently severe or pervasive to alter the conditions of
his employment. In fact, the evidence establishes that management was
extremely accommodating. Likewise, we do not see any evidence in the
record to suggest that a reasonable person would have found the working
conditions intolerable or that complainant's decision to retire was
caused by any intolerable working conditions. Accordingly, we find
that complaint failed to meet his burden in proving a violation of the
Rehabilitation Act with respect to issue 1.
Issue 2 - Reasonable Accommodation Claim
Under the Rehabilitation Act, an agency is required to reasonably
accommodate the known physical and mental limitations of a qualified
individual with a disability unless the agency can show that accommodation
would cause an undue hardship. See 29 C.F.R. � 1630 et.seq. To establish
a case of discrimination based on a failure to accommodate a disability,
complainant must show: (1) that he is an "individual with a disability"
and (2) that he is a "qualified individual with a disability," in that he
is qualified for and can perform the essential elements of the position
held or desired with or without reasonable accommodation. Cansino
v. Department of the Army, EEOC Request No. 05960674 (Aug. 27, 1998)
(citing Prewitt v. United States Postal Service, 662 F.2d 292 (5th
Cir. 1981)). An "individual with a disability" is one who: 1) has a
physical or mental impairment that substantially limits or restricts
one or more of his or her major life activities; 2) has a record of
such impairment; or (3) is regarded as having the impairment. See 29
C.F.R. � 1630.2(g). Major life activities include functions such as
self care, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. See 29 C.F.R. � 1630.2(i).
Assuming, arguendo, that complainant is an individual with a disability,
pursuant to the Rehabilitation Act, we find that he failed to request a
reasonable accommodation or present sufficient evidence that his medical
limitations required a specific accommodation from the agency. The record
in this case establishes that complainant was reasonably accommodated
from the spring of 1997 through January 26, 1998. Complainant was
placed on AWOL from January 26, 1998 through February 12, 1998,<1>
despite requesting leave from his supervisors. The record indicates
that while complainant requested leave, he failed to provide medical
documentation linking his request for leave to a particular medical
condition.<2> Since the request for leave was not obviously linked to
any particular medical condition, it was permissible for the agency to
seek clarifying medical documentation. Moreover, because complainant
failed to respond to the agency's request for such medical documentation,
complainant was not entitled to a reasonable accommodation. See EEOC's
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act, pp. 12-15 (revised October 17, 2002).
Therefore, after a careful review of the record, including complainant's
contentions on 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
December 9, 2002
__________________
Date
1 On February 12, 1998, complainant informed
management that he was unable to work and decided not work but to file
for disability retirement.
2 We find that the record is unclear as to whether complainant is
asserting that the agency failed to approve leave as a reasonable
accommodation or that the agency failed to allow complainant to
continue to work. To the extent that complainant is asserting that he
was not allowed to work, we conclude that the record does not support
the finding that complainant adequately expressed his desire to work.
Accordingly, we find that complainant was not denied such a request.
Moreover, to the extent that complainant argues that he was coerced or
harassed into retiring, as stated above, we find that the preponderance
of the evidence does not support such conclusion.