0520140351
03-18-2015
Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Request No. 0520140351
Appeal No. 0120130611
Hearing No. 510-2010-00349X
Agency No. DECA-00187-2009
DENIAL
Complainant timely requested reconsideration of the decision in Complainant v. Department of Defense, EEOC Appeal No. 0120130611 (April 4, 2014). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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.
See 29 C.F.R. � 1614.405(c).
In the underlying case, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of disability (physical) on numerous occasions between November 22, 2008 and August 26, 2009. Specifically, Complainant alleged that the Agency: (1) coded her as absent without leave or leave without pay on days she was not scheduled to work; (2) forced her to sign a request for leave to receive her work schedule; (3) processed her timesheet without her signature; (4) placed her back on full duty without a doctor's release; and (5) constantly changed her work schedule.
The appellate decision affirmed an EEOC Administrative Judge's (AJ) decision, after a hearing, finding no disability discrimination. At the outset, the appellate decision addressed Complainant's contention on appeal regarding the exacerbation of her medical conditions while at work. Specifically, Complainant had contended that she was unable to recover from her medical conditions and again become physically able to perform the essential functions of her position because the Agency forced her to work outside of her medical restrictions. Regarding Complainant's contention, the appellate decision stated the following:
As a preliminary matter, we note that the EEO complaints process is not the appropriate forum in which to seek relief for injuries sustained in the course of federal employment. We decline to consider Complainant's claim regarding the exacerbation of her condition as a consequence of her assigned duties, except insofar as Complainant sought an accommodation within her medical restrictions upon her return to work following her absence for medical reasons.
Next, the appellate decision found that there was substantial evidence in the record to support the AJ's decision that Complainant was not entitled to the protection of the Rehabilitation Act. Specifically, the AJ found that Complainant was not "qualified" because she could not perform the essential functions of the position she held or desired, with or without reasonable accommodation. Regarding Complainant's Store Worker (Produce Department) position, the appellate decision found that the essential functions included "breaking down" the daily deliveries and stocking, rotating, or culling produce. In addition, the appellate decision found that Complainant was unable to perform the essential functions because her medical restrictions included no lifting over 30 pounds and no repetitive or continuous lifting. Moreover, the appellate decision found that the Agency attempted job restructuring as an accommodation, but ultimately determined that there were no effective accommodations that would enable her to perform the essential functions. Regarding reassignment to another position, the appellate decision found that Complainant did not identify a vacant position which she could perform the essential functions of, with or without reasonable accommodation. Although Complainant maintained that the Agency should have created a light duty position for her that consisted of duties she could perform (such as price checking, cleaning, collapsing boxes, ordering, and coffee making), the appellate decision found that the Agency was not required to do so.
In her request for reconsideration, Complainant contended that the appellate decision involved two clearly erroneous interpretations of material fact or law. First, Complainant argued that the appellate decision clearly erred in declining to consider her claim regarding the exacerbation of her medical conditions while at work. Specifically, Complainant asserted that the Agency failed to properly accommodate her medical restrictions when it placed her back on full duty instead of continuing to provide her with light duty. In addition, Complainant asserted that a failure to accommodate claim unquestionably fell within the Commission's jurisdiction. Second, Complainant argued that the appellate decision clearly erred in failing to consider rebuttal evidence. Specifically, Complainant asserted that documentary evidence in the record contradicted management's testimony regarding claim 2.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to DENY the request.
Regarding Complainant's first argument, we find that the appellate decision did not clearly err in how it analyzed Complainant's failure to accommodate claim. We note that the appellate decision stated at the outset: "We decline to consider Complainant's claim regarding the exacerbation of her condition as a consequence of her assigned duties, except insofar as Complainant sought an accommodation within her medical restrictions upon her return to work following her absence for medical reasons." (emphasis added). It is clear from the second part of the sentence that the appellate decision intended to consider Complainant's failure to accommodate claim. Moreover, we find that the appellate decision actually did consider Complainant's failure to accommodate claim. The appellate decision found that Complainant was not entitled to a reasonable accommodation because she was not "qualified," i.e., she could not perform the essential functions of the position she held or desired, with or without reasonable accommodation. See 29 C.F.R. � 1630.9. To the extent that Complainant wanted the Agency to provide her with only light duty tasks within her Store Worker (Produce Department) position, we note that the Agency was not required to eliminate essential functions as a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, General Principles, Reasonable Accommodation (as revised Oct. 17, 2002) (Guidance). To the extent that Complainant wanted the Agency to create a new position consisting entirely of light duty tasks and then reassign her to that position, we note that the Agency was not required to create a new position. See Guidance, Types of Reasonable Accommodations Related to Job Performance, Reassignment.
Regarding Complainant's second argument, we find that the appellate decision did not clearly err in finding no discrimination. We note that disability was the sole basis of Complainant's complaint. The Agency is prohibited from discriminating on the basis of disability against a qualified individual. See 29 C.F.R. � 1630.4(a)(1). As explained above, the appellate decision found that Complainant was not "qualified," was not entitled to the protection of the Rehabilitation Act, and therefore failed to establish that she was subject to disability discrimination as alleged.
The decision in EEOC Appeal No. 0120130611 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
__3/18/15________________
Date
2
0520140351
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140351