0720070053
02-16-2012
Deboria Hunter, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Deboria Hunter,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0720070053
Hearing No. 420-2006-00081X
Agency No. ATL-05-0023-SSA
DECISION
The Commission accepts the Agency’s appeal following its April 27,
2007 final order, pursuant to 29 C.F.R. § 1614.405(a). On appeal,
the Agency requests that the Commission affirm its rejection of an EEOC
Administrative Judge’s (AJ) finding of discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. The Agency also requests that the
Commission affirm its rejection of the relief ordered by the AJ. For the
following reasons, the Commission REVERSES the Agency’s final order.
ISSUES PRESENTED
The issues presented are:
1. Whether the AJ abused his discretion in denying the Agency’s
motion to dismiss Complainant’s reasonable accommodation claim on the
ground that it previously had been dismissed as untimely; and
2. Whether there is substantial evidence to support the AJ’s
finding that the Agency denied Complainant a reasonable accommodation
when it failed to provide her with a space heater for her work area.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Benefits Authorizer at the Agency’s Southeastern Program Service
Center in Birmingham, Alabama. In 1980, Complainant was diagnosed with
Crohn’s disease, which causes inflammation of the gastrointestinal
tract and has no known cure. Possible symptoms and complications arising
from Crohn’s disease include abdominal pain, diarrhea, anemia, and
inflammation of the joints. For years, Complainant used a space heater
at her workstation to help alleviate certain symptoms and complications
of Crohn’s disease.
On February 21, 2003, the Agency issued a memorandum to limit employees’
use of space heaters due to the risks of electrical overloading and fire
safety problems. According to the memorandum, an employee could seek
authorization for a heater by providing (1) a valid explanation based on
a documented health need or medical impairment, or (2) acceptable medical
documentation to support the requirement of a heater. The memorandum
also required heaters to be approved by Underwriters Laboratories (UL),
and stated that employees were responsible for purchasing heaters once
the Agency authorized their use.
On February 24, 2003, Complainant submitted a written request for
authorization to use a heater to “help ease some of the effects of
Crohn’s disease.” She explained that she suffered from complications
related to this disease, including a vitamin deficiency that caused anemia
and numbness in the extremities, as well as inflammation and pain in the
joints. She wrote that the heat from a space heater is “soothing”
for the joint inflammation and pain and is also “comforting” for
her anemia.
The Agency subsequently authorized Complainant to use a space heater based
on medical documentation in Complainant’s personnel file. However,
Complainant’s old space heater was not (UL) approved, and the Agency
instructed Complainant that she personally had to purchase a new space
heater. Between March 14, 2003 and March 18, 2003, Complainant’s old
heater was removed from her workstation by building management. On March
19, 2003, Complainant obtained permission to retrieve her old heater and
remove it from the building. She requested administrative leave on March
19, 2003, because she was too cold to work at her workstation; however,
the Agency denied her request because temperature testing showed that
the workstation was within contract guidelines. After the removal of
the old space heater, Complainant began bringing in blankets and wearing
coats and gloves at her workstation to try to cope with her symptoms
and complications from Crohn’s disease.
On March 19, 2003, Complainant initiated contact with an EEO counselor.
Complainant, as one of two proposed class agents, then filed a class
complaint alleging discrimination on the basis of physical disability when
the Agency removed employees’ heating devices from their workspaces
without providing similar or comparable accommodations, such as excused
absences, thereby subjecting these employees to physical pain.
During the processing of the class complaint, Complainant made a formal
reasonable accommodation request on May 5, 2003 for the Agency to purchase
a space heater to help ease her anemia and joint inflammation attributed
to Crohn’s disease. On May 8, 2003, Complainant’s first-level
supervisor denied the request, and her second-level supervisor concurred
with the decision on May 9, 2003. In the denial, the Agency explained:
“Heaters are considered a personal appliance and a person wanting
such equipment is required to provide that equipment him or herself.
The Agency is prohibited from making such purchases.” The denial cites
the February 21, 2003 memorandum, requiring an employee to purchase a
space heater if the Agency authorizes that employee to use one.
On December 19, 2003, an EEOC AJ issued a decision to dismiss the
class complaint because it did not meet all of the prerequisites of a
class complaint: numerosity, commonality, typicality, and adequacy of
representation. Specifically, the AJ found that the class representative
failed to provide any anecdotal evidence or affidavits from putative class
members and class agents. In addition, the AJ determined that the class
agents’ individual complaints should be dismissed because they failed
to provide medical documentation showing that they were individuals with
disabilities in need of a particular type of accommodation.
On July 27, 2005, Complainant initiated contact with an EEO counselor,
alleged that she was subjected to discriminatory harassment on the
basis of disability (Crohn’s disease) when on July 8, 2005, management
questioned her about the use and purpose of four hours of administrative
leave for a preventative health screening. According to the EEO
counselor’s description of the interview, Complainant alleged that she
has been continually harassed since 2004. Complainant sought redress by
requesting an end to the harassment, assignment to a different position,
and use of either her old space heater or a new space heater provided by
the Agency. On August 19, 2005, the EEO counselor interviewed Complainant
a second time to clarify the space heater issue. Complainant described
to the counselor the events in 2003 that led to the removal of her old
space heater.
Complainant filed a formal EEO complaint on or around October 12,
2005. On November 30, 2005, the Agency accepted for investigation
Complainant’s allegation of discriminatory harassment on the basis of
disability (Crohn’s disease) when:
1. on July 8, 2005, Agency management questioned her about
the use and
purpose of administrative leave for a preventative health screening.
The Agency dismissed Complainant’s allegations of discrimination on
the basis of physical disability when:
2. in 2003, Agency management refused to provide her the use of a
heater as a reasonable accommodation;
3. in February 2005, her manager subjected her to harassment by
yelling at her and demanding a physician’s letter in advance before
he would approve her leave request; and
4. in April 2005, her manager subjected her to harassment by verbally
abusing her while she called in to request sick leave.
The Agency dismissed claims 2, 3, and 4 on the ground that Complainant
failed to timely initiate contact with an EEO counselor within forty-five
days of the date of the matter alleged to be discriminatory. In addition,
the Agency dismissed claims 3 and 4 on the ground that they did not rise
to the level of actionable discriminatory harassment.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing.
On June 29, 2006, Complainant objected to the Agency’s dismissal
of claim 2 regarding the Agency’s failure to provide a reasonable
accommodation. On July 31, 2006, the AJ assigned to this case ordered
claim 2 to be reinstated because reasonable accommodation violations
are recurring. The Agency subsequently filed a motion to dismiss
claim 2, arguing that claim 2 stated the same claim that had been
previously decided by the Commission in that another EEOC AJ dismissed
Complainant’s individual and class complaints on December 19, 2003.
The EEOC AJ in the present case denied the Agency’s motion to dismiss
claim 2 on October 11, 2006.
On January 11, 2007, the AJ held a hearing solely on claim 2 and
issued a decision on March 20, 2007.1 The AJ found that Complainant
was an individual with a disability because she testified that Crohn’s
disease substantially limited her in the major life activity of digesting
food. The AJ found that the Agency failed to engage Complainant in
an interactive process, and failed to provide Complainant with a space
heater as a reasonable accommodation. The AJ awarded Complainant the use
of a heater to be provided by the Agency, and $8,987.50 in attorney’s
fees.2 The Agency subsequently issued a final order rejecting the AJ’s
finding that Complainant proved that she was subjected to discrimination
on the basis of disability.
CONTENTIONS ON APPEAL
On appeal, the Agency essentially contends that the AJ abused his
discretion in denying the Agency’s motion to dismiss Complainant’s
reasonable accommodation claim because another AJ’s December 19, 2003
dismissal of Complainant’s individual complaint constituted a previous
decision by the Commission on the same claim.
In addition, the Agency maintains that there is no substantial evidence
to support the AJ’s finding that the Agency failed to reasonably
accommodate Complainant’s disability. Specifically, the Agency argues
that the AJ erred in finding that Complainant is an individual with a
disability because the AJ relied on Complainant’s hearing testimony,
which was not supported by any relevant medical documentation or physician
testimony. The Agency also contends that there was no substantial
evidence to demonstrate a nexus between Complainant’s disability and
her requested accommodation. Finally, the Agency maintains that there
was no substantial evidence to show that the provision of a space heater
would enable Complainant to perform the essential functions of her job
because Complainant has continued to perform the essential functions of
her job without a heater.
Complainant had no contentions on appeal.
ANALYSIS AND FINDINGS
AJ’s Denial of Agency’s Motion to Dismiss Reasonable Accommodation
Claim
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that, prior to a
request for a hearing in a case, an Agency shall dismiss a complaint that
states the same claim that has been decided by the Agency or Commission.
In contrast, EEOC Regulation 29 C.F.R. § 1614.109(b) provides that an
EEOC Administrative Judge may dismiss a complaint pursuant to § 1614.107
upon an Agency’s motion to dismiss the complaint. This provision’s
language is permissive rather than mandatory: an EEOC Administrative
Judge “may” dismiss a complaint pursuant to § 1614.107, but is
not required to do so. When EEOC regulations allow an Administrative
Judge to exercise his or her discretion, our review is properly limited
to assessing only whether the AJ’s decision amounts to an abuse of
discretion.
Upon review of the record, the Commission finds that the EEOC AJ did
not abuse his discretion in denying the Agency’s motion to dismiss the
reasonable accommodation claim. We find that there was a basis in the
record and law for the AJ to characterize the reasonable accommodation
claim as a recurring violation in that Complainant informed the EEO
counselor of her continued need for a space heater even after the
Agency’s denial. EEOC Compliance Manual, Section 2, “Threshold
Issues,” EEOC Notice 915.003, at 2-73 (July 21, 2005), provides that
“because an employer has an ongoing obligation to provide a reasonable
accommodation, failure to provide such accommodation constitutes
a violation each time the employee needs it.” The Commission has
specifically held that the denial of reasonable accommodation constitutes
a recurring violation that repeats each time the accommodation is needed.
See, e.g., Peacock v. U.S. Postal Serv., EEOC Appeal No. 0120082372
(July 31, 2008). Therefore, the Commission finds that the AJ’s denial
of the Agency’s motion to dismiss was not so clearly against reason
or the evidence to constitute an abuse of discretion.
AJ’s Finding of Discrimination
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings
by an AJ will be upheld if supported by substantial evidence in the
record. Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law
are subject to a de novo standard of review, whether or not a hearing
was held. An AJ’s credibility determination based on the demeanor of
a witness or on the tone of voice of a witness will be accepted unless
documents or other objective evidence so contradicts the testimony or
the testimony so lacks in credibility that a reasonable fact finder
would not credit it. See EEOC Management Directive 110, Chapter 9,
§ VI.B. (November 9, 1999).
Under the Commission’s regulations, federal agencies may not
discriminate against individuals with disabilities and are required
to make reasonable accommodations for the known physical and mental
limitations of qualified individuals with disabilities, unless an Agency
can show that reasonable accommodation would cause an undue hardship.
See 29 C.F.R. §§ 1630.2(o) and (p). To establish that she was denied
a reasonable accommodation, Complainant must show that: (1) she is an
individual with a disability, as defined by 29 C.F.R. § 1630.2(g);
(2) she 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 EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act, EEOC No. 915.002 (October 17, 2002) (“Enforcement Guidance”).
Individual with a Disability
This case arose before January 1, 2009, the effective date of the
Americans with Disabilities Act Amendments Act of 2008, which made a
number of significant changes to the definition of “disability”
under the Americans with Disabilities Act (ADA) and the Rehabilitation
Act. Because this matter occurred in 2003, the Commission will use
the analytical framework as it existed before the enactment of the
ADA Amendments Act of 2008, to determine whether Complainant is an
“individual with a disability.”
Under the pre-ADA Amendments Act framework, Complainant can show
she is an individual with a disability by demonstrating that she has
a physical or mental impairment that substantially limits one or more
major life activities. 29 C.F.R. § 1630.2(g)(1). A physical impairment
can be any physiological disorder affecting one or more body systems,
including the musculoskeletal, digestive, and genitor-urinary systems.
29 C.F.R. § 1630.2(h)(1). Major life activities include controlling
bodily waste, thinking, and concentrating.
The term “substantially limits” can mean that Complainant is
“[s]ignificantly restricted as to the condition, manner or duration
under which [she] can perform a particular major life activity as compared
to the condition, manner, or duration under which the average person in
the general population can perform that same major life activity.” 29
C.F.R. § 1630.2(j)(1)(ii). Factors to determine whether an individual
is substantially limited in a major life activity include: (1) the nature
and severity of the impairment; (2) the duration or expected duration of
the impairment; (3) the permanent or long-term impact, or the expected
permanent or long term impact of or resulting from the impairment.
29 C.F.R. § 1630.2(j)(2). Chronic, episodic conditions may constitute
substantially limiting impairments if they are substantially limiting
when active or have a high likelihood of recurrence in substantially
limiting forms.
Upon review of the record, the Commission determines that there is
substantial evidence to support the AJ’s finding that Complainant
is an individual with a disability under the Rehabilitation Act.
The record includes Complainant’s February 24, 2003, written request
for authorization to use a heater, in which she explained that one of
the complications from Crohn’s disease was a vitamin deficiency that
caused her to suffer from anemia and numbness in the extremities,
as well as inflammation and pain in the joints. At the hearing,
Complainant testified that Crohn’s disease caused her to experience
“severe pain” in her abdomen, as well as pain and inflammation
in her joints, knees, ankles, and fingers. According to Complainant,
whenever her work space was cold, her Crohn’s disease made it painful
and very uncomfortable for her to perform an essential function of her
job: inputting data into a computer. In addition, Complainant testified
that Crohn’s disease caused other chronic and recurring physiological
disorders, such as frequent elimination of body waste and anemia.
Complainant’s hearing testimony indicated that Crohn’s disease
caused physiological disorders affecting her musculoskeletal, digestive,
and genitor-urinary systems in that she experienced severe abdominal
and joint pain, joint inflammation, anemia, and frequent elimination
of waste. She described these impairments as chronic, recurring, severe,
and frequent. The Commission finds this testimony sufficient to support
the AJ’s finding that Complainant’s Crohn’s disease resulted in
a physical impairment that substantially limited one or more major life
activities, such as food digestion and waste elimination.
The Agency argues, however, that Complainant’s affidavits, responses
to interrogatories, and hearing testimony concerning her symptoms
and ailments caused by Crohn’s disease do not constitute substantial
evidence to support the AJ’s finding that Complainant is an individual
with a disability. Specifically, the Agency asserts that an AJ’s
finding of discrimination on the basis of disability must be supported
by relevant medical evidence, such as medical documentation or physician
testimony. According to the Agency, the only medical documentary evidence
in the record that could support Complainant’s current claim consists
of two outdated physician letters. One letter is dated August 7, 1991,
indicating that Complainant has chronic and incurable Crohn’s disease,
but that Complainant presently has no complications. The second letter
is dated June 22, 1998, indicating that Complainant’s Crohn’s disease
may cause abdominal pain, diarrhea, fever, weight loss, and weakness.
In addition, the Agency argues that the AJ abused his discretion in
denying the Agency’s motion to qualify an Agency medical director as
an expert witness at the hearing. Finally, the Agency contends that
Complainant’s testimony is contradicted by affidavits and testimony
from six Agency employees, who maintained that they were unaware or never
observed any limitations of Complainant due to any medical impairment.
To support the legal proposition that an individual is not entitled
to a reasonable accommodation in the absence of contemporaneous medical
documentation and physician testimony, the Agency cites Raju v. Department
of Veterans Affairs, EEOC Appeal No. 01986574 (November 1, 2001) and the
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act, EEOC No. 915.002 (October 17,
2002) (“Enforcement Guidance”). The Agency argues that Raju supports
the proposition that “an individual who fails to provide documentary
evidence necessary to substantiate his disabilities is not entitled to
accommodation,” while the Enforcement Guidance supports the notion that
an “employer is entitled to documentation from an individual requesting
a reasonable accommodation which shows that the individual has a covered
disability for which they require a reasonable accommodation.”
The Commission finds the Agency’s characterization of the holding in
Raju and depiction of the interactive process in the Enforcement Guidance
to be inaccurate. In Raju, the Commission declined to decide whether the
employee in that case was an individual with a disability; however, for
the purposes of that decision, the Commission assumed, without deciding,
that the employee was an individual with a disability substantially
limited in the major life activity of walking. The Commission further
assumed, arguendo, that the employee was a qualified individual with
a disability. However, because the employee failed to respond to the
Agency’s request for medical documentation to justify his need for
leave as a permanent accommodation, the Commission determined that he
was not entitled to an accommodation.
Raju and the EEOC Enforcement Guidance both reiterate the proposition
that, as part of the interactive process, an employer may ask an
individual for reasonable documentation about that person’s disability
and functional limitations when the disability or need for accommodation
is not obvious. Enforcement Guidance at 12-13. An employer may require
that the documentation about the disability and the functional limitations
come from an appropriate health care or rehabilitation professional.
Id. at 13. Although the Enforcement Guidance states that an employer is
entitled to know that an individual has a covered disability for which
that person needs a reasonable accommodation, an entitlement to know
does not necessarily mean that there is an entitlement to receive written
medical documentation, as the Agency argues in its appellate brief.3
What Raju and the Enforcement Guidance espouse is this: if an
individual’s disability or need for reasonable accommodation is not
obvious, and the person refuses to provide the reasonable documentation
requested by the employer, then the individual is not entitled to
reasonable accommodation.4 Id. at 15. Therefore, the Commission rejects
the Agency’s argument that contemporaneous medical documentation
and physician testimony are the only types of evidence that can be
relevant and that a reasonable mind might accept as adequate to support
a conclusion of discrimination on the basis of disability.
The Commission also discerns no abuse of discretion in the AJ’s
denying the Agency’s motion to qualify its medical director as an
expert witness in this case. EEOC Administrative Judges have broad
discretion in the conduct of hearings. See 29 C.F.R. § 1614.109(e);
Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO- MD-110) at 7-8 to 7-14 (revised November 9, 1999); Bennett
v. Department of the Navy, EEOC Request No. 05980746 (September 19,
2000). The Agency’s medical director testified that he practiced
emergency medicine. On cross-examination, he admitted that he was not
a specialist in autoimmune diseases or gastroenterology and that his
practical experience with Crohn’s disease was limited to patients
who have come into the emergency room. Upon questioning by the AJ,
the medical director testified that he had not received any additional
medical training after medical school to qualify him as an internist
or general surgeon. Moreover, the medical director admitted that his
testimony concerning Complainant’s Crohn’s disease would be based
only on his review of four documents in the record: the letters from
Complainant’s physicians dated August 7, 1991 and June 22, 1998;
Complainant’s February 24, 2003 written request for authorization
to use a heater; and Complainant’s May 5, 2003 written request for a
reasonable accommodation.
The Commission finds that the AJ did not abuse his discretion in denying
the Agency’s motion to qualify its medical director as an expert witness
because the medical director did not have any specialized knowledge or
experience about Crohn’s disease, and his testimony would be based
on his review of two medical documents rather than Complainant’s
contemporaneous medical record.
Finally, the Commission is not persuaded by the Agency’s argument
that Complainant’s testimony does not constitute substantial evidence
because six Agency employees maintained that they either were unaware
of or had never observed Complainant having any limitations due
to a medical impairment. Our Enforcement Guidance provides that an
individual with a disability may request a reasonable accommodation at
any time during the period of employment. Enforcement Guidance at 11.
The Rehabilitation Act does not preclude an employee with a disability
from requesting a reasonable accommodation because the individual did not
ask for one when applying for a job or after receiving a job offer. Id.
Rather, an individual with a disability should request a reasonable
accommodation when the person knows that there is a workplace barrier
that is preventing that person, due to a disability, from effectively
competing for a position, performing a job, or gaining equal access to
a benefit of employment. Id. Moreover, the Commission notes that the
alleged workplace barrier arose when Complainant could no longer use a
space heater at her workstation. Therefore, one explanation as to why
other Agency employees were previously unaware of or had never observed
Complainant’s limitations may be that the workplace barrier had not
yet arisen and Complainant had no need to bring her limitations to their
attentions. Further, the Agency’s argument in this regard overlooks the
existence of disabilities which are not obvious and, short of disclosure
by the affected individual, would never be noticed by anyone else.
Qualified Individual with a Disability
After Complainant has demonstrated that she is an individual with a
disability, she must then show that she is a “qualified individual
with a disability,” an individual who satisfies the requisite
skill, experience, education, and other job-related requirements of the
employment position and who, with or without reasonable accommodation, can
perform the essential functions of such position. 29 C.F.R. § 1630.2(m).
The Commission finds that there is substantial evidence in the record
to support a finding that Complainant is a qualified individual with
a disability. Complainant’s second-line supervisor testified that
Complainant was a satisfactory employee who had no trouble performing
the essential functions of a benefits authorizer, including working with
a keyboard.
Reasonable Accommodation
One category of reasonable accommodation is a modification or adjustment
to the work environment that enables a qualified individual with a
disability to perform the essential functions of that position.
Enforcement Guidance at 2. A modification or adjustment is
“reasonable” if it “seems reasonable on its face, i.e., ordinarily
or in the run of cases”; this means it is “reasonable” if it appears
to be “feasible” or “plausible.” Id. at 4. An accommodation
also must be “effective” in meeting the needs of the individual:
the accommodation must remove a workplace barrier, thereby providing
the individual with an equal opportunity to apply for a position, to
perform the essential functions of a position, or to gain equal access
to a benefit or privilege of employment. Id. at 4-5, 18.
On appeal, the Agency argues that the AJ erred in finding that Complainant
had been denied a reasonable accommodation of a space heater in that:
(1) the accommodation is not effective because it does not address
Complainant’s substantial limitation in the major life activity of
digesting food, and (2) the accommodation is not needed by Complainant,
who has continued to perform the essential functions of her job without
a space heater.
The Commission finds it useful to refer to our Enforcement Guidance,
which offers an instructive example of a reasonable accommodation
involving a similar chronic, inflammatory disorder in which symptoms
vary from person to person and affect various organs:
A cashier easily becomes fatigued because of lupus and, as a result,
has difficulty making it through her shift. The employee requests a
stool because sitting greatly reduces the fatigue. This accommodation is
reasonable because it is a common-sense solution to remove a workplace
barrier – being required to stand – when the job can be effectively
performed sitting down. This “reasonable” accommodation is effective
because it addresses the employee’s fatigue and enables her to perform
her job.
Id. at 5.
After reviewing the record, the Commission finds that there is substantial
evidence to support the AJ’s finding that the Agency failed to
reasonably accommodate Complainant’s disability. Like the Complainant
in the previous example who was diagnosed with lupus and experienced
fatigue, Complainant in this case testified that she experiences severe
pain in her abdomen as well as pain and inflammation of the joints in her
knees, ankles, and fingers because of Crohn’s disease and, as a result,
has difficulty typing inputs into her workstation computer. Complainant
testified that she requested a space heater at her workstation because
radiant heat reduced the pain and inflammation. This accommodation
is reasonable because it removes a workplace barrier—the cold work
environment at her workstation—when the job can be effectively
performed with more radiant heat. This reasonable accommodation is
effective because it addresses Complainant’s severe physical pain and
inflammation and enables her to perform her job, which includes typing
inputs into a computer.
Moreover, Complainant’s testimony suggests that the reason she
has been able to continue to perform the essential functions of her
job despite the absence of a space heater is not because she does not
need an accommodation, but rather because she has endured the cold work
environment through self-help remedies like bringing in blankets, coats,
and gloves to alleviate the severe physical pain.
The record shows that Complainant’s second-line supervisor testified
that she was unaware of Complainant’s limitations at the time when
Complainant requested an accommodation. Yet, the second-line supervisor
testified that she had no information showing that Complainant’s
first-line supervisor went to Complainant and requested additional medical
information or documentation to support Complainant’s accommodation
request. Rather than request from Complainant reasonable medical
documentation or ask her questions about her functional limitations
to identify an effective accommodation, Complainant’s first and
second-line supervisors denied Complainant’s request by reasoning
that: (1) a space heater is a personal use item, and (2) the Agency is
categorically prohibited from purchasing such an item.
The Commission reminds the Agency that our Enforcement Guidance does
not categorically prohibit employers from providing personal-use items
as reasonable accommodations. The Enforcement Guidance only states
that agencies are not required to provide as reasonable accommodations
personal use items that are needed in accomplishing daily activities
both on and off the job. Enforcement Guidance at 6. For example, an
Agency is not required to provide an employee with a prosthetic limb,
a wheelchair, eyeglasses, hearing aids, or similar devices if they are
also needed off the job. Id. The Commission emphasizes that items that
might otherwise be considered personal use may be required as reasonable
accommodations where they are specifically designed or required to meet
job-related rather than personal needs. Id. at 6-7.
Here, the record does not indicate that Complainant intended to use
the space heater as a personal-use item off the job. Complainant only
testified that the space heater was required so that she could effectively
perform an essential function of her job: typing inputs into her computer.
Overall, the Commission finds that there is substantial evidence in the
record to support the AJ’s finding that the Agency failed to reasonably
accommodate Complainant when it did not provide her with a space heater.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission reverses
the Agency’s final order, which rejected the EEOC AJ’s finding that
the Agency failed to reasonably accommodate Complainant’s disability.
The decision of the EEOC AJ is affirmed. The Agency is directed to
comply with the order below.
ORDER
To the extent that the Agency has not done so, the Agency is ordered to
take the following actions:
A. Within thirty (30) calendar days of the date this decision becomes
final, the Agency shall provide to Complainant a space heater that
comports with the facility’s safety codes.
B. Within thirty (30) calendar days of the date this decision becomes
final, the Agency shall pay Complainant’s counsel $8,987.50 in
attorney’s fees and costs.
C. Within ninety (90) calendar days of the date this decision becomes
final, the Agency shall provide training to the Agency personnel
responsible for the failure to provide Complainant with reasonable
accommodation, placing special emphasis on the procedures for initiating
and engaging in the interactive process upon receiving a request
for reasonable accommodation as well techniques for clarifying and
identifying appropriate reasonable accommodations that an individual
needs under the Rehabilitation Act.
D. The Agency shall consider taking disciplinary action against the
Agency officials identified as being responsible for denying Complainant
a reasonable accommodation. The Agency shall report its decision.
If the Agency decides to take disciplinary action, it shall identify the
action taken. If the Agency decides not to take disciplinary action, it
shall set forth the Reasons(s) for its decision not to impose discipline.
The Agency shall provide a report of its compliance with Paragraphs A,
B, C and D of this Order to the Compliance Officer as referenced below.
Copies must be sent to Complainant and her representative.
POSTING ORDER (G0610)
The Agency is ordered to post at its Southeastern Program Service Center,
Birmingham AL facility the attached notice. Copies of the notice,
after being signed by the Agency’s duly authorized representative,
shall be posted by the Agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The Agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled “Implementation of the Commission's Decision,” within ten
(10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by
29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney’s fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney’s fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees
to the Agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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 (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 (R0610)
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 (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 w
ith 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:
______________________________
Bernadette Wilson
Acting Executive Officer
Executive Secretariat
__2/16/12________________
Date
1 In Complainant’s response to the Agency’s first set of
interrogatories, Complainant wrote that she was no longer pursuing a
claim of hostile work environment. Therefore, the Commission will not
review whether the Agency properly dismissed claims 3 and 4 alleging
discriminatory harassment.
2 The AJ did not award compensatory damages because Complainant did not
seek said damages.
3 For example, the Enforcement Guidance provides that an employer may
simply discuss with the individual the nature of the person’s disability
and functional limitations as an alternative to requesting documentation.
Id. at 14.
4 The Commission notes that there is nothing in the record to indicate
that the Agency asked Complainant to provide reasonable documentation
about her disability or functional limitations after receiving her request
for reasonable accommodation on May 5, 2003. As such, the Commission
in this case will not construe that an absence of contemporaneous
medical documentation or physician testimony as a failure on the part
of Complainant to provide reasonable documentation.
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