0120113847
09-22-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113847
Agency No. ARSTEWART10JUN02597
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 13, 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. For the following reasons, the Agency's Final Decision (FAD) which found that Complainant did not show that he was subjected to discrimination and/or denied a reasonable accommodation is AFFIRMED.
ISSUE PRESENTED
The issue presented is whether Complainant was subjected to discrimination or denied a reasonable accommodation?
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supply Management Specialist, GS-12 at the Agency's Logistics Support Team, Army Field Support Battalion in Fort Stewart, Georgia. On April 8, 2009, Complainant was placed on sick leave due to medical conditions which included a full blockage of the right internal carotid artery, a lipid disorder, and chronic hypertension. On May 1, 2009, Complainant was issued a memorandum indicating that he was scheduled for a rotational assignment to Korea, with a report date of April 30, 2010. On May 5, 2009, Complainant accepted the rotation to Korea and indicated that he would report as directed as he had signed a DOD Civilian Employee Overseas Emergency Essential Position Agreement. On April 12, 2010, Complainant provided a letter from his physician requesting that he be allowed to stay in close proximity to his treating physician. He requested a deferment in his overseas rotation. On April 23, 2010, Complainant's deferment was denied because his circumstances did not meet the criteria for a deferment in rotation under Army Regulation 700-19. Although noting his physician's concerns related to receiving regular, ongoing, care for his medical issues, the Agency concluded that his new duty station in Korea provided full medical care in the treatment of his health issues. Further, Complainant's request for deferment did not meet any of the allowed exceptions which included the following: (a) serious illness or injury of the employee that would prevent performance of duties in the new assignment; (b) health problems in the employee's immediate family such as the illness that is expected to be terminal, or that dictates presence of the employee, [such as] anticipated pregnancy complication; (c) death of an immediate member of the family, [where] absence of the employee will impose undue hardship on the family; or (d) imminent breakup of the family group. Thereafter, on April 30, 2010, Complainant submitted a physician's note which indicated that he would be out of work for several weeks. At some point during the deferment request process, Complainant was diagnosed with depression and anxiety due to work environment stressors.
On May 7, 2010, Complainant was asked to provide medical documentation regarding his extended absence from work as the note that he initially provided did not support an extended absence. Complainant was told that the medical documentation was needed to determine whether to provide a leave of absence. The medical documentation needed to be provided by May 10, 2010; otherwise, he needed to report for duty. If he did not provide the request information, Complainant was told that he would be considered insubordinate and possibly AWOL. When Complainant did not comply, he was notified that he would be placed in an AWOL status if he continued to not provide the requested medical documentation. On May 19, 2010, Complainant was ordered to report for a fitness for duty exam to determine his medical ability to deploy as his doctor had asserted that he should not deploy, but provided inadequate documentation to support that assertion. In the letter, Complainant was advised of the possible outcomes of a determination that he was permanently unable to deploy, the outcome included possible termination.
The fitness for duty exam process took place from May 24, 2010 through August 17, 2010. It was determined that Complainant should not be deployed due to his medical condition, and should be reevaluated in six months. On June 14, 2010, Complainant submitted a request for accommodation that formally requested a lateral transfer to a non-mobile position at his current duty location, where he could be in close proximity to his treating physicians. Complainant resubmitted the request on August 30, 2010 and September 17, 2010.
On July 22, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability (physical and mental) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. On May 19, 2010, he received a letter directing him to complete a fitness for duty examination to "determine his medical and deployment status;"
2. On May 13, 2010, his second-line supervisor (S2) threatened to remove him from Federal Service unless he provided extraordinarily detailed medical documents on very short notice;
3. On May 7, 2010, he received a letter from S2 requesting medical documentation within two days;
4. On April 23, 2010, he received a letter denying his request for deferment; and
5. On an unspecified date, he was denied a requested accommodation.
On September 21, 2010, Complainant's first-line supervisor told Complainant that he did not have a vacant position at Fort Benning, Georgia, but was sending his request to Fort Stewart, Georgia. Shortly, thereafter, Complainant was asked to provide the completed reasonable accommodation request forms to Fort Stewart. Complainant provided the forms and included copies of the same medical statements previously submitted. On October 25, 2010, further clarification of the medical documents was requested. On November 1, 2010, Complainant provided a partial submission in response to the request.
Following an investigation by the Agency, Complainant was advised that he could select either a hearing before an Equal Employment Opportunity Commission Administrative Judge or receive a FAD. When Complainant did not respond in a timely manner, a FAD was issued. The FAD found that Complainant failed to identify individuals outside of his protected bases who had been treated more favorably. The Agency explained that Complainant was denied a deferment because his request did not meet any of the regulation's exceptions. Specifically, his medical documentation did not prove that he had a serious illness or injury that would prevent performance of duties in the new assignment as the Korea location had all of the necessary medical facilities to care for his condition. Also, Complainant repeatedly maintained that he could perform all of his essential job functions, except that he could not perform them outside of the close proximity to his doctors. The FAD found that Complainant failed to show that he was subjected to discrimination.
Notwithstanding, the FAD found that assuming arguendo that Complainant was a qualified individual with a disability, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that with respect to claim no. 1, the fitness for duty examination was requested in an effort to expedite the process to determine whether Complainant was able to deploy. Regarding claims nos. 2 and 3, the Agency indicated that the medical documentation provided by Complainant was insufficient for management to make a determination on his request for extended sick leave, so further information was requested. S2 required detailed medical documentation from Complainant because the documentation that his physician provided excused his absence through May 7, 2010, so further documentation was needed to justify his extended leave. Further, the request for additional documentation merely listed that removal from service was a potential consequences that could happen from Complainant's failure to respond. The Agency maintained that it was not an attempt to harass or threaten Complainant. Further, with regard to claim 4, Complainant's request for deferment being denied, the Agency explained that based on the medical information that was submitted Complainant's medical condition could be treated in Korea.
Finally, the Agency maintained that Complainant's request for accommodation was not denied. The Agency explained that the fitness for duty exam results showed that Complainant had a medical condition that precluded his immediate deployment, however, he was to be reevaluated in six months to determine whether he was permanently non-deployable. The Agency maintained that once Complainant requested a reasonable accommodation, the correct forms were provided and the information was forwarded to the Brigade level. Complainant's request was not denied, but was pending at the time he filed his complaint, awaiting a further evaluation of his condition.
Moreover, management maintained that it did not force Complainant to move from his duty station or deploy. He continued to be assigned duties throughout the accommodation process. The Agency maintained that it acted within EEOC regulations and guidance and that additional medical documentation was requested because the documentation provided was not specific and did not show how his disability linked to his request for an accommodation. Moreover, the Agency maintained that it was providing Complainant an accommodation by allowing him to continue working without deploying him. It was also noted that Complainant failed to provide notice of any vacant funded positions to which he could have been transferred. The Agency asserts that Complainant failed to show that its reasons were pretext for discrimination or that he was denied a reasonable accommodation.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the FAD contains inconclusive information that pertains to his case. He maintains that crucial information was left out of the Agency's decision. Complainant contends that the Agency did not engage in a good faith effort to provide an accommodation until over five months after his initial request was submitted by his physician. Complainant maintains that management indicated to him that they were caught off guard that he experienced a medical relapse after just being medically cleared in February 2010. Complainant maintains that when he submitted his physician's documentation that he should not be deployed and that he should seek treatment close to home that was his first request for a reasonable accommodation.
Complainant further maintains that he was discriminated against when the Agency: failed to accommodate him; unnecessarily prolonged the interactive process once he initiated it; unnecessarily imposed short timeframes to provide additional documents; and threatened his removal from federal service using the words "be warned" and subjected him to harassment. He asserts that although he was otherwise qualified to perform the core functions of his position, the Agency failed to place him in a position that did not require him to deploy. He also requests that he be given sufficient leave to properly consult with his treating physicians to manage his blood pressure and cholesterol, including lab work and examinations to prevent an exacerbation of his condition.
In response, the Agency maintains, among other things, that the FAD should be affirmed. The Agency argued that Complainant's reprisal claim fails because he had not engaged in prior EEO activity and his request for reasonable accommodation did not occur until after he initially approached an EEO Counselor. Further, the Agency maintains that Complainant is not in need of an accommodation or in need of the accommodation of transfer as he has been allowed to stay at his position which he admits he has no difficulty performing. Moreover, Complainant was assured that he would not be required to relocate or deploy to any hostile area, per his request. Specifically Complainant was told that the Agency would not require him to move from Ft. Benning through a permanent change of station or deployment, pending final medical determination of his medical fitness for duty. Complainant remains at his position of record, at Ft. Benning, exactly where he wants to be, with no obligation to move to Korea or to deploy to a hostile area. The Agency maintained that as long as Complainant is able to successfully perform the full range of his assigned job duties at Ft. Benning with no modifications or adjustments to his work environment or job duties, he requires no accommodation. The Agency requests that the FAD be affirmed.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. The Commission has long held that when a disability or need for a reasonable accommodation is not apparent, the Agency may ask for medical documentation to explain the need. In the instant case, we find that even if we assume arguendo that Complainant established a prima facie case of reprisal and discrimination based on his disability, the Agency articulated legitimate, nondiscriminatory reasons for its actions as was discussed above. We find Complainant did not show that the nondiscriminatory reasons articulated by the Agency were pretext for discrimination. We find that other than Complainant's conclusory statements that the Agency was unreasonable in requesting additional medical documentation, was unreasonable with the time frames in which Complainant was asked to respond, and that he was given a list of consequences that could occur if he did not comply, he did not provide any evidence which suggested that discriminatory animus was involved with these issues.
The record shows that Complainant's initial medical documentation was very brief and did not provide any specifics as to why Complainant had to be treated only by his physician. As such, we find that it was reasonable for the Agency to have requested additional documentation because based on the medical documentation that Complainant provided the Agency initially believed that he could be fully treated at his duty station in Korea. We also note that this was also the reason that the deferment request was denied. We find the preponderance of the evidence of record does not establish that discrimination occurred.
Additionally, with regard to the Agency's request that Complainant undergo a fitness for duty exam, we find that the Agency showed that the request was job related and consistent with business necessity. We find the documentation provided by Complainant with respect to his request not to deploy gave no explanation as to why Complainant could not be treated by other physicians in a different location. Further, with regard to Complainant's request for extended sick leave, again the medical documentation did not show how his medical condition was related to his request for leave. We find that Complainant did not provide any evidence which showed that the fitness for duty exam request was not appropriate.
Reasonable Accommodation
The Commission's regulations require an Agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. � 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at � 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at � I630.2(n)(3).
When an individual's disability or need for reasonable accommodation is not obvious, as is the case here, and the individual fails to provide reasonable documentation requested by the employer, the employer will not be held liable for failure to provide the requested accommodation, EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915,002, Question 6 (rev. Oct. 17, 2002).
With regard to his reasonable accommodation claim, we find that the Agency ultimately provided Complainant with the accommodation he sought, i.e., he is in a non-deploy status at his current duty location, where he remains in close proximity to his treating physicians. The Rehabilitation Act only mandates that qualified individuals with disabilities be granted an effective 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). Complainant may not have been happy with his assignment, but it complies with the Agency's obligations under the Rehabilitation Act. Further, we find that Complainant did not show that there was an unreasonable delay with regard to the Agency's actions given the request for medical documentation, the fitness for duty process, the request for leave and the processing of the deferment request. The key fact, however, is that throughout this extended period, Complainant remained at his position of record, Ft. Benning, where he wanted to be with no obligation to move to Korea or to deploy to a hostile area.
Accordingly, we find that Complainant did not demonstrate that he was subjected to discrimination and/or denied a reasonable accommodation. The Agency's FAD is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
__9/22/15________________
Date
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