01994911_01a10406
09-02-2003
Daniel Porter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daniel Porter v. United States Postal Service
01994911; 01A10406
September 2, 2003
.
Daniel Porter,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01994911; 01A10406
Agency No. 4D-280-0135-98
DECISION
INTRODUCTION
Complainant timely initiated appeals to this Commission from two final
agency decisions concerning his complaints of unlawful 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 appeals are accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the dismissal of one claim occurring on March 6, 1998
(01A10406) is affirmed and the decision regarding the remaining claim
(01994911) is vacated and remanded.
ISSUE PRESENTED
The issues presented herein is (1) whether complainant's March 6,
1998,<1> claim was timely and (2) whether complainant was a person
with a disability (severe migraines) and thus entitled to reasonable
accommodation on May 29, 1998.
BACKGROUND
Complainant filed a formal complaint on September 2, 1998, in which he
claimed he was denied reasonable accommodation on March 6, 1998 and May
29, 1998. The agency dismissed the March 6th denial as untimely, and
accepted the May 29th denial for investigation. During the investigation
of the May 29th denial, complainant appealed the March 6th denial to
this Commission. In response to complainant's appeal, the Commission
remanded the matter to the agency for supplementation of the record
after determining that a pertinent document was missing from the file.
Specifically, the Commission's remand order instructed the agency,
in relevant part, to supplement the record with the missing document,
and then to either accept the March 6th denial for investigation, or
issue a new final agency decision dismissing it with appeal rights to
the Commission. The agency chose to issue a new final agency decision
dismissing the March 6th denial. Complainant appealed. That appeal
was docketed as EEOC Appeal No. 01A10406.
When the agency concluded its investigation regarding the May 29th denial,
it provided complainant with a copy of the investigative file and informed
him of his right to elect either a hearing before an EEOC Administrative
Judge or an immediate final agency decision. When complainant failed
to make an election, a final agency decision was issued pursuant to 29
C.F.R. � 1614.110(b), in which the agency found that complainant had not
been discriminated against as alleged. Specifically, the agency found
that complainant's impairment did not rise to the level of a disability,
and he therefore failed to make out a prima facie case of discrimination
based on disability. Complainant appealed. That appeal was docketed
as EEOC Appeal No. 01994911. On appeal, complainant argues that his
impairment does rise to the level of a disability. He further argues
that the agency ignored the professional recommendations of his doctors,
who recommended that complainant be assigned to a regular schedule
(as opposed to having to report to work at 2:00 a.m. from Thursday to
Saturday, at 6:00 a.m. on Sunday, and at 11:00 a.m. on Monday) to allow
him to maintain a regular sleeping pattern.
ANALYSIS AND FINDINGS
Untimely EEO Contact - March 6, 1998 Denial
Upon review, the Commission finds that the complaint concerning the
March 6, 1998 denial was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO contact. The record discloses that the
alleged discriminatory event occurred on March 6, 1998, and complainant
did not initiate contact with an EEO Counselor until May 28, 1998,
which is beyond the forty-five (45) day limitation period. On appeal,
no persuasive arguments or evidence have been presented to warrant an
extension of the time limit for initiating EEO contact. Accordingly, the
agency's final decision dismissing complainant's complaint is affirmed.
See National Railroad Passenger Corporation v. Morgan, 536 U.S. 101(2002).
Reasonable Accommodation - May 29th Denial<2>
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. �1630.9.
The Commission also notes that an employee must show a nexus between
the disabling condition and the requested accommodation. See Wiggins
v. United States Postal Service, EEOC Appeal No. 01953715 (April 22,1997).
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, the complainant must demonstrate that
s/he is an "individual with a disability." EEOC Regulation 29 C.F.R. �
1630.2(g), in pertinent part, defines an individual with a disability
as one who has a physical or mental impairment that substantially limits
one or more of that person's major life activities. EEOC Regulation 29
C.F.R. � 1630.2(h)(2)(i) defines "major life activities" as including
the functions of caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
Complainant also must demonstrate that he is a "qualified" individual
with a disability within the meaning of 29 C.F.R. � 1630.2(m). See also
Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999).
Complainant can do this by showing that he can perform the essential
functions of his position with or without a reasonable accommodation. Id.
After examining the medical evidence provided by complainant, it is clear
that complainant has a physical impairment (severe migraines). He has also
indicated that he has as many as 18 of them a month. However, the medical
evidence does not give sufficient information as to how complainant's
migraines actually affected his major life activities. Information in
the record shows that complainant experienced an increase in migraines
due to his change in shift work. Complainant submitted a doctor's note
that indicated that he suffered from severe migraines which limited
his sleep patterns such that he was required to go to sleep and get up
at the same time every day, and get the same number of hours of sleep
every day in order to control the migraines. The note further stated
that when complainant went from a regular work schedule to a rotating
work schedule, his migraines changed from a rare, controllable migraine
to up to eighteen migraines per month, many of which were described as
disabling. Finally, complainant submitted a doctor's note on May 29, 1998,
that indicated that his migraines became far more frequent and severe when
he was placed on the rotating work schedule thereby causing him to have
to take a great deal more of his medication, which could be detrimental
to his health and caused complainant to urinate more frequently along
with other side effects. For his part, complainant stated that the
rotating shifts caused him to wake up with more headaches at nighttime.
Complainant further stated that the shifts caused him, at night, to wake
up more, have trouble sleeping, and lose his breath a lot.
In Reitman v. Dept. of the Air Force, EEOC Appeal No. 01A10628 (March
6, 2003), the Commission found that the complainant, who also had
migraines and a sleep disorder, was not disabled within the meaning
of the regulations. In Reitman the complainant had migraines that
�occasionally� made his vision blurry and also had a diagnosed sleep
disorder. However, the complainant in Reitman provided no details as to
the frequency of his migraines nor evidence that his ability to see was
substantially limited. Further the complainant in Reitman referenced
trouble getting to sleep and sleeping fitfully as part of his sleep
disorder. In the case before us, there is information that complainant
had as many as 18 migraines a month - which amounts to more often than
every other day. Complainant's migraines were considered severe and
�many� were described by his doctor as �disabling�, and that the increase
in his medication was such that there was concern about side effects.
Although complainant in the instant case appears to have had difficulty
sleeping as did the individual in Reitman, there is no information that
this was from a sleep disorder, rather it appears to be a consequence
of his migraines and his condition goes beyond that of the individual
in Reitman.
While in the instant case there is discussion by the doctor of frequent
�severe� migraines many of which are �disabling�, it is impossible
for the Commission to determine the full extent of what happened when
complainant had a migraine headache. Under the circumstances of this
case where the record suggests that the doctor was trying to emphasize
the severity of complainant's condition but presupposes some knowledge
of migraine headaches, it is the decision of the Commission to remand
the matter for further information as to whether complainant met the
definition of a person with a disability as set forth in the regulations
and a new final agency decision. This is done because although the
record indicates there was a high frequency of severe migraines many of
which were �disabling�, the Commission is reluctant to guess what was
meant by the use of such terminology given that not all individuals have
the same kind/type of migraines. In addition, the agency is directed
to supplement the record with any available evidence on the issue of
whether complainant was a person with a disability during the relevant
period. Further, the record should be supplemented with complainant's
leave/attendance records for the relevant period. To that extent,
the Commission vacates the agency's final decision on the matter and
directs the agency to obtain further information from complainant to
determine whether complainant was a person with a disability at the
time of the incidents in question herein. Therefore, the Commission
remands the matter for further information and the issuance of another
final agency decision in accordance with the order set forth below.
CONCLUSION
The dismissal of the March 6, 1998 claim of failure to reasonably
accommodate is affirmed. The agency's decision finding no discrimination
with respect to the claim that complainant was denied reasonable
accommodation on May 29, 1998 is vacated and remanded as set forth below.
ORDER
1.Within 15 days of the date on which this decision becomes final,
the agency shall inform complainant of its receipt of the instant
matter. Thereafter complainant shall have thirty (30) calendar days from
the date of his receipt of the agency's notice to submit the following
information to the agency (with supporting medical documentation as
appropriate):
Information as to what happened to complainant during the relevant period
when he experienced a migraine, the manner in which he was incapacitated
when he had a �disabling� migraine, the frequency of those episodes,
the duration and manifestations of the migraines, the relationship
between his migraines and his sleep and how he was affected by such, and
any side effects from the medication, as well as any other information
needed to make a determination as to whether complainant was a person
with a disability as defined by the regulations.
2. Within thirty (30) days of receipt of complainant's information,
the agency shall supplement complainant's submission with (a) any
available evidence on the issue of whether complainant was an individual
with a disability during the relevant period and (b) complainant's
time/attendance records for the relevant period.
3. Thereafter, within ninety (90) days of the date this decision becomes
final, the agency shall issue a new final agency decision with appeal
rights to the Commission on complaint number 4D-280-0135-98, taking into
consideration the information provided by complainant.
4. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include a copy of the agency's final agency
decision and all of the supplemental information provided by complainant
and the agency as set forth above.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 2, 2003
__________________
Date
1We note that the final agency decision referred to February 18, 1998,
as the date of the initial denial. However, information in the file
suggests that while the accommodation request was dated on February
18, 1998, it was not given to agency officials until March 5, 1998,
and denied by the agency on March 6, 1998.
2Because the duty to reasonably accommodate an individual with a
disability is an ongoing one, each denial of an accommodation request
restarts the time period for contacting an EEO counselor.