Complainant,v.Thomas E. Perez, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Jul 15, 2015

01-2013-2817-0500 (E.E.O.C. Jul. 15, 2015)

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

,
Complainant,

v.

Thomas E. Perez,
Secretary,
Department of Labor,
Agency.

Appeal No. 0120132817

Hearing No. 510-2013-00032X

Agency No. 12-04-060

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
June 17, 2013 final Agency decision (FAD) concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et
seq. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Examiner
with the Agency’s Final Adjudication Branch of the Division of Energy Employees,
Occupational Illness Compensation in Jacksonville, Florida. The essential functions of the
Claims Examiner position were to adjudicate cases for contractor employees exposed to toxic
substances during the manufacturing of nuclear weapons and arms. Complainant suffers from
depression, anxiety, post-traumatic stress disorder, migraines, irritable bowel syndrome,
Graves’ disease, and other conditions. As a result of these conditions, Complainant asserted
that she was unable to perform the essential functions of her position in that she was not able to
meet deadlines and found it difficult to adjudicate cases. In addition, Complainant stated that
she could not keep up and found it difficult to concentrate.

On March 22, 2011, Complainant’s doctor indicated in a letter that Complainant was being
placed on restricted duty for a minimum of three months, and that Complainant would only be
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able to return to work full time in a position without deadlines, quotas, and the responsibility
for the well-being of others. Complainant’s doctor advised that Complainant not return to
work unless those restrictions could be met. On April 8, 2011, Complainant informed the
Agency that she would be returning to work against the recommendation of her doctor. On
April 8, 2011, the District Manager (DM) responded to Complainant reminding her that her
previous medical documentation was sufficient to establish her entitlement to Family Medical
Leave Act (FMLA) leave. However, since Complainant expressed a desire to return to work
due to her financial situation, the District Director informed Complainant that management
would have work available for Complainant on a tentative basis until Complainant provided
updated medical documentation. Complainant submitted a letter from her doctor dated April
14, 2011, which stated that Complainant could resume the duties of her position provided that
she could take time off from work when she and/or her doctor felt it was necessary. Most
significantly, her doctor stated that Complainant “may resume all duties of her position, but
will not be able to meet deadlines, and may find it difficult to adjudicate difficult cases.”

Complainant continued reporting to work; however, she failed to meet deadlines. On October
13, 2011, Complainant experienced a panic attack at work and was taken to the hospital by
ambulance. On October 18, 2011, Complainant filed a workers’ compensation claim, and was
out of work until November 28, 2011. Complainant was subsequently granted disability
retirement in January of 2012.

On March 8, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race and national origin (African-American), sex
(female), color (Brown), disability, age (40), and in reprisal for prior protected EEO activity
when, from April 8, 2011 until her retirement on January 14, 2012, management failed to
grant her reasonable accommodations requested by her physician, including not requiring her
to meet deadlines or make complex decisions.

At the conclusion of the investigation, the Agency notified Complainant of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant requested a hearing, but the AJ dismissed the request on April 16, 2013, after
Complainant failed to obey the AJ’s orders and cooperate with discovery. As a sanction, the
AJ remanded the complaint to the Agency, and the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).1

In the FAD, the Agency determined that Complainant failed to establish that she is a qualified
individual with a disability because she could not perform the essential duties of her position.
The position description for Complainant’s position as a Claims Examiner clearly stated that
the purpose of the position is to “develop and adjudicate both basic and complex illness claims
and make timely and accurate decisions and recommendations on entitlement to benefits.”
Additionally, the position description notes that “severe time constraints are imposed on the

1 The AJ’s dismissal and remand order is not contained in the record submitted by the Agency;
however, Complainant does not challenge the AJ’s actions on appeal.
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completion of assignments.” Management observed Complainant’s inability to perform her
duties as she was rated “Minimally Successful” on her FY 2010 performance evaluation. DM
indicated that Complainant “did not meet her standards for timeliness” despite “being informed
as to her performance” concerning timeliness throughout the FY 2010 rating period. Further,
in the beginning of 2011, DM observed “a noticeable and measureable inability by
Complainant to perform the essential functions of her job.”

In addition, Complainant’s doctor informed DM in an April 14, 2011 letter that Complainant
would not be able to meet deadlines and would find it difficult to adjudicate difficult cases.
Thus, Complainant’s doctor advised DM that Complainant would not be able to perform the
essential functions of her position. Further, Complainant herself admitted that she could no
longer perform the duties of her job. As a result, the Agency concluded that Complainant
could not establish that she was a qualified individual with a disability. Accordingly, the
Agency found that Complainant was not entitled to reasonable accommodation.

Further, the Agency noted that Complainant failed to request reasonable accommodation. DM
and the Assistant District Manager (ADM) attempted to engage Complainant in the interactive
process on numerous occasions, in addition to enlisting the aid of an EEO counselor.
Specifically, DM informed Complainant of the reasonable accommodation process and of her
ability to request an accommodation on five occasions in 2010 and 2011. DM continually
sought information about what accommodation Complainant needed to perform her duties and
Complainant continually maintained that her doctor’s submissions to DM listed the reasonable
accommodations that she desired. The Agency determined that despite DM and ADM’s
attempts to engage Complainant in the interactive process, Complainant failed to cooperate.

Additionally, the Agency found that even if Complainant had cooperated, management still
would not have been able to grant the accommodation Complainant desired. Complainant
asserted that the specific accommodations required for her medical conditions were no
deadlines and no complex decisions. However, Complainant’s desired accommodations were
contrary to the essential functions of her position, which included “develop[ing] and
adjudicate[ing] both basic and complex illness claims and mak[ing] timely and accurate
decisions.” The Agency determined that Complainant basically wished to be granted
reasonable accommodation that would do away with the essential functions of her position. As
a result, the Agency found that management had not denied Complainant reasonable
accommodation in violation of the Rehabilitation Act.

Regarding Complainant’s disparate treatment claim, the Agency determined that Complainant
failed to show that the Agency’s reasons for its actions were pretext for unlawful
discrimination or reprisal. As a result, the Agency found that Complainant had not been
subjected to discrimination or reprisal as alleged. The instant appeal followed.

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CONTENTIONS ON APPEAL
On appeal, Complainant contends that the FAD was flawed and the Agency failed to review
previously submitted documents. Complainant argues that other employees were provided
accommodations for their restrictions. Further, Complainant claims that she qualifies as an
individual with a disability yet she continued to work “fully duty” despite having medical
restrictions. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS
Denial of Reasonable Accommodation

Under the Commission's regulations an agency is required to make reasonable accommodation
of 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).

Here, the record evidence establishes that Complainant was unable to perform certain of the
essential functions of the position and, therefore, she was not qualified for the Claims
Examiner position. The Claims Examiner position description confirms that the purpose of the
work of a Claims Examiner is to “develop and adjudicate both basic and complex illness
claims and make timely and accurate decisions and recommendations on entitlement to
benefits.” On April 14, 2011, Complainant’s physician indicated that Complainant “may
resume all duties of her position, but will not be able to meet deadlines, and may find it
difficult to adjudicate difficult cases.” ROI, at 73. Complainant herself admitted she could no
longer perform the duties of her position. Id

. at 56. The record reveals that Complainant did
not identify any effective accommodations that would have enabled her to perform the essential
functions of her position, nor did she identify a vacant funded position for which she was
qualified and to which she could have been reassigned. Thus, because Complainant was not a
qualified individual with a disability, the Commission finds that she has not established that the
Agency denied her reasonable accommodation in violation of the Rehabilitation Act.
Disparate Treatment

Finally, to the extent that Complainant is alleging disparate treatment (apart from
accommodation), the Commission finds that as discussed above, the Agency has articulated
legitimate, nondiscriminatory reasons for its actions. Further, the Commission finds the
record is devoid of any evidence that Complainant's protected bases were a factor in the
Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate
that the Agency's reason were not the real reasons, and that the Agency acted on the basis of
discriminatory or retaliatory animus. Complainant has failed to carry this burden.
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Accordingly, the Commission finds that Complainant has failed to show that she was
discriminated or retaliated against as well.

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 decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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).
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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

Date
July 15, 2015