Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 7, 2013

0120114178 (E.E.O.C. Mar. 7, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120114178

Hearing No. 531-2010-00216X

Agency No. OCO-09-0567-SSA

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s September 9, 2011 final order concerning her 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’s
review is de novo. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Enumerations
Clerk in the Agency’s Office of Central Operations in Baltimore, Maryland. The Agency’s
facility is located in the Metro West building. Complainant very rarely drove to work, but
when she did, she parked in a public parking lot at Lexington Market, one block away from
the building. There is a free parking garage under the Metro West building, but only
employees who have a reserved space may park there. Additionally, there is a pay-to-park
garage across the street from the building; however, Complainant did not like to park there
because it was more expensive than the lot one block away at Lexington Market.

The Agency offers reserved parking in the Metro West garage for employees with disabilities.
Employees must file an application with supporting medical documentation to be considered
for a reserved space. The application is reviewed by the Public Health Service
Physician/Medical Parking Officer who provides a recommendation to the Office of Protective
Security Services for a final decision.

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Complainant was approved for temporary medical parking in 1998 and 1999 without medical
documentation, but her re-application was denied because her submitted medical
documentation described her condition as “mild.” Complainant failed to submit any
documentation showing that she was limited in her ability to walk. Complainant subsequently
filed an EEO complaint on September 9, 2007, regarding the matter. The Administrative
Judge assigned to the matter found that the Agency had not discriminated against Complainant
because she did not establish that she was an individual with a disability as defined under the
Rehabilitation Act.1

On April 8, 2009, Complainant submitted another application for a medical parking space.
Complainant failed to submit a complete application, however, failing to have her physician
complete parts of the application and instead wrote “Medical Documentation Previously
Submitted” on both pages. The Public Health Service Physician evaluated Complainant’s
application and previously submitted medical documentation. He concluded that there was
insufficient evidence to support approving the medical parking request, and the Agency
subsequently denied Complainant’s request. Complainant was given the opportunity to submit
the medical documentation in support of her application and instructions as to what was needed
to evaluate the request; however, she failed to submit any medical documentation.

On August 9, 2009, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the basis of disability when, on May 15, 2009, management
denied her reasonable accommodation request for permanent medical parking. At the
conclusion of the investigation, the Agency provided Complainant with a copy of the report of
investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing, but the AJ granted the Agency’s motion
for summary judgment and issued a decision on July 29, 2011.

In the decision, the AJ initially assumed arguendo that Complainant is an individual with a
disability. Nonetheless, the AJ determined that Complainant has not established that she
needed a reserved parking space in the garage. More specifically, Complainant failed to show
that she was limited in her ability to perform an essential job function that she could otherwise
perform with the requested accommodation of medical parking in the building’s garage.
Accordingly, the AJ found that the Agency had not discriminated against Complainant as
alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency discriminated against her by denying her
reasonable accommodation request. Further, Complainant argues that the Agency has ulterior
motives to deny reasonable accommodation requests because it benefits upper management.

1 The Commission does not have any record of Complainant filing an appeal regarding this
previous complaint.
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Finally, Complainant contends that she and other disabled employees are denied a basic civil
right. Accordingly, Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

Under the Commission's regulations, an Agency is required to make a reasonable
accommodation for 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. §§ 1630.2 (o) and (p). For purposes of analysis, the Commission shall assume,
without so finding, that Complainant is an individual with a disability.

As an initial matter, the Commission notes that the AJ (while ultimately correct that
Complainant was not wrongfully denied reasonable accommodation) did not go far enough in
her analysis of Complainant’s request for reasonable accommodation. The AJ concluded that
the Agency had not unlawfully denied Complainant reasonable accommodation because
Complainant failed to show that the requested accommodation would have helped her perform
the essential functions of her position that she otherwise could not perform without the
accommodation. Reasonable accommodation includes, “Modifications or adjustments that
enable a covered entity's employee with a disability to enjoy equal benefits and privileges of
employment as are enjoyed by its other similarly situated employees without disabilities.” 29
C.F.R. § 1630.2(o)(1)(iii). Thus, the AJ should have additionally considered whether the
requested accommodation would have allowed Complainant to enjoy equal benefits and
privileges of employment.

Nonetheless, the Commission finds that Complainant has not shown that the Agency
wrongfully denied her reasonable accommodation. Specifically, the record supports the
Agency's position that it denied Complainant’s request for reserved medical parking because
her submitted application and medical documentation were insufficient. The Deputy Division
Director explained that Complainant’s April 8, 2009 request for medical parking was denied
because her application was incomplete and contained no objective medical documentation to
support her request. ROI, Ex. 7, at 3-4. Further, her previously submitted medical
documentation was insufficient to conclude that she qualified for medical parking. Id. The
Deputy Division Director added that she suggested to Complainant the types of medical
documentation she could submit or at a minimum, the condition for which she sought medical
parking. Id.

Accordingly, the Commission finds that Complainant has not established that she was denied
reasonable accommodation in violation of the Rehabilitation Act. The Agency needed
sufficient medical documentation in order to evaluate Complainant’s requested accommodation
so that it could determine what accommodation would best serve the needs of the Agency and
Complainant. The record reveals that Complainant was given the opportunity to submit
additional medical documentation and was also given specific information as to the type of
documents that the Agency needed. The record shows, however, that Complainant failed to
provide the requested documentation. An employer may ask an individual for reasonable
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documentation about that person's disability and functional limitations when the disability or
need for accommodation is not obvious. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No.
915.002 (October 17, 2002) at 12-13. Accordingly, the Commission finds that Complainant
has not established that she was denied reasonable accommodation in violation of the
Rehabilitation Act.

CONCLUSION

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 order.

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 (Nov. 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).

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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

March 7, 2013
Date