Deangelo C.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Sep 27, 2019

0120180010 (E.E.O.C. Sep. 27, 2019)

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

Deangelo C.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120180010

Agency No. BOP-2014-0572

DECISION

Complainant timely filed an appeal with the Equal Employment Opportunity Commission
(EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 17,
2017, 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
Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether Complainant established that he was denied a reasonable
accommodation for his disability, as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Correctional
Officer, GS-7, at the Agency’s Federal Detention Center (FDC) in Miami, Florida. Report of
Investigation (ROI), at 12. Complainant has a permanent vascular impairment in his left leg that
developed as early as 1999, limiting his ability to walk and engage in “any vigorous activity.”
ROI, at 69-70.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Complainant’s leg became swollen and a blood clot developed while he was on duty on
September 4, 2013. He sought treatment for his condition two days later. Id. at 72, 153-54. On
September 17, 2013, Complainant filed an injury claim with the Office of Workers’
Compensation Programs (OWCP), and subsequently submitted a note from his doctor dated
September 26, 2013. Therein, Complainant’s doctor instructed that Complainant could “return to
work with limited duty,” and recommended that Complainant avoid prolonged standing and
sitting, as well as vigorous exertion. Id. at 124.

Subsequently, on October 23, 2013, the Agency’s Environmental and Safety Compliance
Administrator sent Complainant a memorandum requesting additional medical documentation
concerning the diagnosis and the treatment plan regarding his condition. Id. at 132-33. The next
day, on October 24, 2013, the OWCP informed Complainant that his workers’ compensation
claim was being denied based on evidence that his injury was caused by a prior condition not
related to his employment. Id. at 162-63.

Thereafter, on October 31, 2013, Complainant submitted a memorandum to the Warden
“requesting reasonable accommodation” for his condition. He did not identify a specific
accommodation or otherwise explain what type of accommodation he sought. Id. at 87. On
November 1, 2013, the Associate Warden responded to Complainant, writing that he had two
concerns regarding Complainant’s request. The Associate Warden specifically wrote that
Complainant’s request was missing a doctor’s statement for the period of recovery, and also that
Complainant’s request was an open-ended request without an end date. Id. at 85-86. The
Associate Warden therefore informed Complainant that he would not be able to work at the FDC
until he was fully able to perform the duties of his Correctional Officer position. Id. The
Associate Warden advised Complainant, however, that he would re-evaluate Complainant’s
request if the requested additional medical documentation were submitted. Id.

Complainant subsequently submitted a note from his doctor dated November 28, 2013. Id. at 93-
94. In the note, Complainant’s doctor wrote, in pertinent part, that there had “been no therapeutic
interventions to impact [Complainant’s] condition.” Id. Complainant’s doctor also wrote that
Complainant’s “related duties are such that it is not possible for him to be placed on ‘limited
duty.’” Id. Complainant’s doctor further wrote that it was not clear “what intervention is most
appropriate nor what the time course of [Complainant’s] recovery will be,” but that
Complainant’s projected return to work would be three months from November 28, 2013. Id.

On December 4, 2013, the Warden sent a memorandum to Complainant, based on his November
28, 2013, doctor’s note. Id. at 123. The Warden wrote that Complainant’s request for three
months of Leave Without Pay (LWOP) had been granted, and he would be allowed to return to
work after he submitted medical documentation showing that he could return to full duty without
restrictions. Id.

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Months later, on February 17, 2014, Complainant submitted another doctor’s note, informing the
Agency that he underwent a medical procedure and he should be able to return to full duty by
March 24, 2014. Id. at 90. The Agency thereafter, through Standard Form 52 (SF-52), approved
Complainant’s return to work effective March 24, 2014. Id. at 130-31.

On July 10, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of disability when, on November 1, 2013, the Agency denied his request
for reasonable accommodation. Following 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).2 Complainant elected
to have a hearing, but after Complainant failed to comply with the AJ's Order Scheduling an
Initial Conference, the AJ remanded the complaint to the Agency for the issuance of a final
decision. The Agency thereafter issued its decision concluding that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.

The Agency found that while Complainant did establish that he was an individual with a
disability, he did not show that he was a “qualified” individual with a disability under the
Rehabilitation Act. The Agency specifically found that Complainant could not respond to
emergencies due to his physical condition, and therefore could not perform the essential
functions of his position. The Agency additionally found that Complainant did not establish that
he was denied a reasonable accommodation for his disability, as alleged. In so finding, the
Agency noted that Complainant requested a reasonable accommodation on October 31, 2013, but
he did not identify any particular accommodation. The Agency noted that the Associate Warden
therefore found that Complainant’s request was too unspecific to grant, and he appropriately
asked Complainant for more medical documentation. The Agency observed that Complainant’s
new medical documentation showed that he would require at least three months of leave before
he could return to work without restrictions. The Agency further noted that Complainant never
raised the issue of accommodation after the Warden interpreted Complainant’s doctor’s letter as
a request for LWOP. The Agency noted that, although Complainant averred that he felt forced to
accept the LWOP, the record contained no evidence that Complainant informed management
that their response to his request was unacceptable or that he suggested an alternative
accommodation. The Agency lastly found that Complainant did not establish that other
employees who also needed accommodation were treated more favorably than he. As such, the
Agency determined that Complainant did not show that it violated the Rehabilitation Act as
alleged.

2 In Deangelo C. v. Department of Justice, EEOC Appeal No. 0120171219 (May 2, 2017), the
Commission reversed the Agency’s dismissal of Complainant’s complaint for untimely EEO
Counselor contact and ordered the Agency to resume the processing of Complainant’s complaint
from the point where processing ceased.
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CONTENTIONS ON APPEAL

On appeal, Complainant, through his representative, maintains that he continues to have a
medical condition that affects his ability to perform his duties, causing him to take sick and
annual leave and to work under continuous pain and discomfort. Complainant states that has a
one hundred percent disability rating from the Department of Veteran Affairs and maintains that
the Agency continues to deny him accommodation. Complainant additionally states that the
November 1, 2013, Associate Warden’s response to his October 31, 2013, request for
accommodation was not in compliance with established policy. He particularly maintains that the
Associate Warden decided his request for accommodation with no medical background,
education, or experience to do so. Complainant maintains that the Associate Warden failed to
analyze the current essential functions of his position or to consult with him to determine how his
limitations could be accommodated. Complainant moreover contends that the Associate Warden
failed to refer his reasonable accommodation request to the Agency’s Accommodation
Coordinator, who serves as the point of contact for making the workplace accessible for
individuals with disabilities. Complainant maintains that he requested to be placed on LWOP
only because he was fearful that he could face Absence Without Leave (AWOL) charges if he
did not report to work as scheduled.3

STANDARD OF REVIEW

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 Chap. 9, § VI.A. (Aug. 5, 2015) (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”).

3 For the first time on appeal, Complainant attempts to add reprisal as a basis of his complaint.
There is no evidence that Complainant sought to amend his complaint at any time prior to this
appeal, and Complainant does not explain why he believes that the Agency’s actions constituted
reprisal for prior protected EEO activity. Accordingly, we decline to consider his reprisal claim
herein.

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ANALYSIS AND FINDINGS

Reasonable Accommodation

The Commission notes that an agency is required to reasonably accommodate the known
limitations of a qualified individual with a disability, unless it can show that doing so would
cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G.
v. Dep't of Agriculture., EEOC Appeal No. 0120120400 (Dec. 3, 2015). For purposes of this
decision, we assume, without so finding, that Complainant is a qualified individual with a
disability.
In the instant case, there is no dispute that Complainant’s doctor, in medical documentation dated
November 28, 2013, wrote that Complainant’s “related duties are such that it is not possible for
him to be placed on ‘limited duty’” and that Complainant’s projected return to work would be
three months from November 28, 2013. As such, in accordance with Complainant’s medical
documentation, the Warden noted that Complainant’s request for three months of LWOP had
been granted, and Complainant would be allowed to return to full duty after he submitted
medical documentation showing that he could return to full duty without restrictions. We note
that “[p]ermitting the use of accrued paid leave, or unpaid leave, is a form of reasonable
accommodation when necessitated by an employee's disability . . . . Employers should allow an
employee with a disability to exhaust accrued paid leave first and then provide unpaid leave.”
Enforcement Guidance; see also Spranger v. U.S. Postal Serv., EEOC Appeal No. 01974565
(Mar. 20, 2000) (unpaid leave is a potential reasonable accommodation under the Rehabilitation
Act).
In addition, there is no dispute that management allowed Complainant to return to full duty
effective March 24, 2014, after he submitted documentation showing that he could return. While
Complainant asserts that he was involuntarily placed on LWOP, at no point did he inform the
Agency that he needed a different accommodation. Complainant further did not show that there
was another accommodation available that he could have been provided. Based on the record, we
find that Complainant has not established that he was denied a reasonable accommodation in
violation of the Rehabilitation Act, as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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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

September 27, 2019
Date