0120120548
08-31-2015
Complainant, v. Sally Jewell, Secretary, Department of the Interior, Agency.
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120120548
Agency No. BOR100564
DECISION
On November 7, 2011, Complainant filed an appeal from the Agency's August 26, 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). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Complainant established that the Agency discriminated against him based on his disability when he was not provided a reasonable accommodation and threatened with termination due to time and attendance matters after sustaining an injury.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Electrician on a term appointment from October 2009, until November 20, 2010, in the Hungry Horse Field Office, Grand Coulee Power Office, Pacific Northwest Region, in Hungry Horse, Montana. On October 15, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (shoulder injury) when:
1. He was threatened with an adverse personnel action due to his shoulder disability by recording his absence on August 5, 2010, and beyond as Absence Without Leave resulting in termination of his term appointment;
2. The federally sponsored leave share program was not made available to him; and
3. He was denied a light duty option to return to work or the availability of reasonable accommodation.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
On June 28, 2010, Complainant had surgery to repair a rotator cuff impingement in his right shoulder. Complainant requested and was granted annual and sick leave to cover his absence from the job during surgery and recovery. Complainant did not request any additional leave; and did not submit an application for Workers Compensation. Further, Complainant did not tell his supervisor that his shoulder injury was incurred on the job.
On July 6, 2010, Complainant's physician told him that he would be cleared to return to work with modified duties on July 12, 2010. On that same day, Complainant informed his supervisor (S1), that he would be available for light duty as of July 12, 2010. S1 asked for written documentation from Complainant's physician. The physician's documentation was received by the Agency on July 13, 2010. Complainant was placed on the following work restrictions for 30 - 60 days: no overhead work; no overhead lifting; no out of body reaches greater than 12 inches; no lifting over 10 lbs; no carrying more than 10 lbs; and, no pushing or pulling over 20 lbs.
On July 14, 2010, Complainant's supervisor told him that he had met with Supervisory Facility Manager (S2), regarding Complainant's work restrictions, and that a decision was made that Complainant should not return to work until all restrictions were lifted. S1 followed up in writing with an email to Complainant's work email on July 15, 2010, which Complainant did not receive until he returned to work on August 2, 2010. Medical documentation submitted by Complainant's physician and received by the Agency on July 21, 2010, released Complainant to return to work without any work restrictions as of August 2, 2010. Complainant returned to work on August 2, 2010, and worked in full-time, regular duty status until his term appointment expired in November 2010.
On July 13, 2010, Complainant received a certified letter signed by S2, dated July 7, 2010, Subject: Leave/Request for Medical Documentation. This letter put Complainant on notice that once his approved leave was exhausted on August 4, 2010, he was expected to return to work, and, if he did not return to work on or before August 5, 2010, he would be placed in an Absence Without Leave (AWOL) status, which would result in the termination of his term appointment.
Complainant stated that the shoulder surgery was successful, and that he did not request a reasonable accommodation related to his right shoulder after he returned to work on August 2, 2010, but, he stated that he did not do so because he interpreted S2's letter as stating that he would be terminated if he was not working at full duty.
Complainant named a co-worker (CW1) as an employee who was treated more favorably than he was under similar circumstances. Complainant was told that CW1 had taken a substantial amount of time off; that he did not have leave; and, that he was suspected of being AWOL. In contrast, Complainant stated that he had leave and had done everything appropriately to arrange for the leave, but, according to Complainant, he was treated unfairly.
S2 was not aware that Complainant had a disability, and stated that Complainant never requested a reasonable accommodation. S2 knew that Complainant was scheduled to have surgery on his shoulder, but he understood the medical condition was minor, short-term, and correctable.
S2 did not deny any leave requested by Complainant. Rather, Complainant did not request any other leave options besides using his annual and sick leave balance, such as advanced leave, leave share, Leave without Pay (LWOP), or Family & Medical Leave Act (FMLA). S2 stated that he was never in a position to deny something that was never requested. He stated that it was Complainant's responsibility to apply for the leave share program if he wished to take advantage of it and he did not do so. S2 states that the intent of the July 7, 2010, letter was to request that Complainant submit medical documentation regarding his condition and ability to work and to inform Complainant, based on the information, the arrangements that were available at the time, i.e., what action the Agency would have to take if Complainant was not able to return to work upon exhaustion of his approved leave. At the time the letter was issued, management had only a general idea as to when Complainant would return to work, and, as a term employee, if Complainant was unable to return to work, he would have been terminated and replaced in order to get the work done that he was hired to do. S2 stated that the language in the letter is in accordance with the Pacific Northwest Region Absence and Leave Policy Handbook.
S2 introduced emails that indicated that he was concerned that he did not have the sufficient number of employees to accomplish the work. He also sought guidance from appropriate Agency officials before sending the letter and before deciding whether to approve light duty for Complainant.
With regard to the issue of light duty, S2 testified that Complainant had an off-the-job injury, and that, pursuant to Grand Coulee Power Office memo #8, he was not obligated to provide light duty for employees who suffer off-the-job injuries/illness.1 Under this policy, in the case of an on-the-job injury, an employee was responsible to immediately report the injury to their supervisor and complete the appropriate forms. S2 stated that Complainant did not follow this protocol, and that S2 had been informed that Complainant told his supervisor that he had a pre-existing shoulder injury. Under the policy, S2 had the discretion to approve light duty for an employee who suffered an off-the-job injury, but he made the decision not to do so in Complainant's situation. S2 believed that after reviewing the work restrictions placed on Complainant by his physician, there was no meaningful light duty work available that could have been accomplished within the prescribed work restrictions without risking re-injury to the Complainant and liability on the part of the Agency.
S2 distinguished Complainant's situation from that of CW1. He stated that CW1 had a medical condition requiring his absence from the job and that CW1 applied for and was granted LWOP. Complainant did not request LWOP, and that Complainant was never denied any leave that he did request.
S1 was not aware that Complainant had a disability, and Complainant never requested a reasonable accommodation. Every time Complainant asked for leave, it was granted, and Complainant never applied for LWOP or leave share. He stated that Complainant never told him that his shoulder injury happened on the job. On June 15, 2010, S1 sent an email to Complainant asking to be updated on his rehabilitation progress and attached a copy of the Agency's policy regarding light duty. After receiving Complainant's medical documentation on July 13, 2010, and reviewing Complainant's work restrictions on July 14, 2010, he and S2 agreed that there were no available light duty jobs that Complainant could perform within those restrictions, and that it would be better to have Complainant remain on leave that had already been approved. He informed Complainant of this decision immediately via telephone and followed up with an email, dated July 15, 2010.
Complainant argued the language used by S2 in his July 7, 2010, letter precluded the consideration of options, since Complainant understood the letter to indicate that he would be terminated from work upon exhaustion of his leave. He stated that S2 did not discuss options or address their availability in the letter, and that he effectively denied any additional leave requests by pre-empting the opportunity to request additional leave. Complainant believed that he triggered management's responsibility to understand that be had a disability when he requested leave for surgery and rehabilitation and when he requested an accommodation in the form of modified/light duty. Complainant did not request reasonable accommodations upon returning to work after August 5, 2010, because he interpreted the language in the July 7, 2010, letter as a threat of adverse employment action if he did not return to work in full duty status. Complainant acknowledged that he was capable of performing assigned work after his return and that he utilized mechanical devices to aid in lifting, pulling, etc. in order to guard against injury.
Complainant stated that S2 was obligated to determine whether his injury was job related or not; that S2 never requested medical evidence from the orthopedic surgeon to determine if his shoulder condition was job related or not. Complainant also maintained that it was S2's responsibility to initiate contact with him regarding the scheduling of his future work and to get specific information about his shoulder condition before issuing the July 7, 2010, letter. Complainant stated that it showed poor judgment and that it was arrogant and reckless on S2 part to issue the letter without complete information. He stated further that S2 failed to communicate information that reflected that S2 was interested in his employee's health or in helping Complainant. As such, Complainant stated S2 failed to treat him with dignity and respect, which was a requirement in Hungry Horse Field Office Facility Goals for FY 2010.
The Agency found that Complainant failed to establish a prima facie case of discrimination because he did not show that he was substantially limited in a major life activity. The Agency noted that Complainant was injured for a limited period of time over a short duration. Nevertheless, the Agency continued with its analysis and found that assuming Complainant established a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Namely, both S1 and S2 stated that there were no light duty positions available that could be performed by Complainant within his restrictions.
The Agency further found that S2 did not violate the Agency's leave policy when he sent the letter to Complainant on July 7, 2010. The Agency noted that Complainant did not show that he was subjected to any adverse employment action. To the extent that Complainant argued that he was denied the opportunity to take leave and participate in the leave share program, the Agency found that the July 7, 2010 letter was not a preemptive denial of future requests for leave. Further, the Agency noted that Complainant did not request additional leave. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant argues, in relevant part, that the reasons proffered by the Agency are not supported and are pretext for disability discrimination. The Agency did not provide a statement on appeal.
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").
We find that a fair reading of the complaint, Complainant's affidavit, the record, and the FAD shows that Complainant is alleging that the Agency failed to provide him with a reasonable accommodation based on his shoulder injury when it denied him light duty, failed to make available to him the leave share program, and instructed him to return to work by August 5 2010 or face possible adverse consequences. As such, we address the relevant legal matters below.
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that the accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p). In order for Complainant to establish that he was denied a reasonable accommodation, he must show that (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance.
Complainant must make the initial showing that he is a "qualified individual with a disability," that is, an individual with a disability who satisfies the requisite skill, experience, education and other job related requirements of the position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of the position. 29 C.F.R. � 1630.2(m). Complainant maintains that he was denied a reasonable accommodation when he was not provided light duty during the period from July 12 until August 2, when he was medically cleared to return to work without any restrictions. Assuming, without so finding, that Complainant was an individual with a disability under the Rehabilitation Act, the evidence of record indicates that during the relevant time period Complainant was not "qualified." There is no dispute that during the period after his surgery, Complainant could not perform the essential functions of his position, and therefore he requested light duty. We note the Agency's position, however, that there was no light duty available within Complainant's medical restrictions. Complainant has not shown that this assertion was false.
Because Complainant could not work as a an Electrician and there is no evidence that light duty work within his medical restrictions was available, we turn to considering whether Complainant could have been reassigned. Here, Complainant has not identified any vacant, funded position existing at the relevant time to which he could have been reassigned. Absent evidence of a particular vacant position, we cannot conclude that the Agency violated the Rehabilitation Act based on its actions in this case.2
As noted above, Complainant was medically cleared to return to work on August 2, 2010 and did not allege that he was impaired from performing his work. Rather, he stated he was able to return to his full duties and used available accommodations such as a lift to help him perform his duties. Complainant did not allege that these other measures were ineffective or that he was injured or otherwise negatively impacted by returning to work in his full capacity at that time.
Assuming Complainant was able to establish a prima facie case of discrimination with regard to his assertions that the leave share program was not made available to him, we find no discrimination on the part of the Agency. As noted above, S2 did not deny any leave requested by Complainant; and Complainant did not request any other leave options besides using his annual and sick leave balance. We find that it was Complainant's responsibility to: (1) apply for the leave share program if he wished to take advantage of it; and (2) understand what benefits were available to him. We cannot find the Agency conducted itself in an inappropriate manner with regard to this issue.
With regard to Complainant's belief that the Agency was threatening him with the July, 2010 letter, we find no persuasive evidence to support this contention. Given that Complainant's doctor cleared him to return to work on August 2nd, two days before the Agency required him to return, we do not find that he suffered a harm or loss, i.e., that he was made to do something that he would not have done anyway. If Complainant misinterpreted the Agency's letter, we cannot find an adverse action by the Agency took place.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFFIRM the FAD finding no discrimination.
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 (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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___8/31/15_______________
Date
1 Memo #8 was entitled Light Restricted Duty and Pacific Northwest Regional Office Policy No. PER 1.00-7400-31, entitled Office of Workers Compensation Programs, at page 5.
2 Evidence that a vacant funded position existed may be inferred based on documentary or testimonial evidence regarding, inter alia: (1) Complainant's qualifications; (2) the size of the Agency's workforce; and (3) indicia of postings and/or selections during the pertinent time period within classes of jobs for which Complainant would have been qualified. See Barnard v. United States Postal Service, EEOC Appeal No. 07A10002 (Aug. 2, 2002). Complainant failed to provide such evidence, although it is his burden to do so.
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0120120548
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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