0120090482
06-20-2013
Estate of William K. Taylor, Jr., Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Citizenship and Immigration Services), Agency.
Estate of
William K. Taylor, Jr.,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120090482
Hearing No. 560-2007-00121X
Agency No. HS-06-CIS-001209
DECISION
JURISDICTION
On October 31, 2008, Complainant's Estate filed an appeal from the Agency's October 3, 2008, final order concerning his 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.1 The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented in this case are whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing; and whether Complainant, during the period at issue, was a qualified individual with a disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact Representative at the Agency's National Records Center in Lee's Summit, Missouri. Complainant began working for the Agency on June 13, 2005, as a GS-7 Contact Representative. Complainant testified in his investigative affidavit that, after he began working, he was diagnosed with sarcoidosis, a disease characterized by persistent nodular inflammation of the lungs, lymph nodes, eyes, skin, liver, and spleen. (ROI, Exhibit 9; Exhibit 10a). According to Complainant, he had difficulty breathing, and his condition caused him to have an irregular heart beat, that sometimes caused delayed electrical impulses in his brain, dizziness and "other symptoms." (ROI, Exhibit 10a, p. 1). He also experienced blurred vision and sensitivity to light. (ROI, Exhibit 9; Exhibit 10a, p.1). According to Complainant, he was prescribed prednisone for the inflammation and other medications to combat his hypertension. Id. Complainant stated that he experienced various side effects from his medications, including increased dizziness, difficulty concentrating and some short-term memory loss. Id. Complainant also indicated that his vision, breathing, concentration, and his ability to walk were affected by his condition. (ROI, Exhibit 9).
On April 17, 2006, Complainant was terminated from his position, during his probationary period, effective April 28, 2006. S1, Complainant's immediate supervisor, testified in his investigative affidavit that Complainant was terminated from his position due to his high error rate in telephone intake and in case processing. (ROI, Exhibit 11). As a Contact Representative, Complainant was responsible for taking phone calls from customers requesting information from files housed at the National Records Center; creating electronic records for telephone and email requests in a tracking database; responding to less-complicated customer requests by scanning and emailing or faxing documents in a timely manner; and updating information in the Agency's Central Index System. (ROI, Exhibit 11; Exhibit 12; Exhibit 13). According to the record, of all of Complainant's duties, job element #2, "Quality of Phone Intake" and job element #4, "Quality of Cases Processed" were deemed critical elements.
The "Quality of Phone Intake" element measured an employee's accuracy at telephone intake based upon monthly samplings and feedback from customers. The record indicates that error points were assigned for each error found. Id. Similarly, the "Quality of Cases Processed" element measured an employee's accuracy in cases processed (i.e., information provided to customers) based upon monthly samplings and feedback from customers. Id. The record indicates that error points were also assigned for this critical element for each error found. Id. The number of cumulative error points determined the rating, with 61 or more error points on either critical element warranting an "Unacceptable" rating.
Between January and March 2006, Complainant had accumulated 60 error points on the "Quality of Phone Intake" element and 81 error points on the "Quality of Cases Processed" element. Complainant's supervisors, S1 and S2, indicated that almost from the beginning of Complainant's employment, he maintained a high error rate. They stated that Complainant had received extensive, one-on-one training and was offered additional training to curtail his errors, yet he continued to have a high error rate.
On March 5, 2006, Complainant met with S1, and A3, another supervisor who worked on the same shift as Complainant, to discuss his error rate. (ROI, Exhibit 17). Complainant told the supervisors, for the first time, that he had a medical condition that affected his short-term memory, and that he was also concerned about his father's health, and that these matters affected his concentration at work. (ROI, Exhibit 12; Exhibit 17; Agency's Mot. Summ. J., Exh. B, p. 6; Exh. C, p. 3). According to A3, Complainant failed to disclose any specifics about his medical condition, the medications he was taking, or how either affected his ability to perform the duties of his position. (Agency's Mot. Summ. J., Exh. B, p, 6). Nevertheless, S1 and A3 advised Complainant to submit medical documentation concerning his medical condition, if he felt his condition impaired his ability to perform his job. Complainant was also told that he could request a reasonable accommodation, if he provided sufficient medical documentation to support the request. Id.
S1 and Complainant met again the following day, March 6, 2006, but there is a dispute as to the nature of the discussion. Complainant testified that after S1 told him that his performance remained unsatisfactory, he told S1 that his vision was blurred because the computer screen was too small. (ROI, Exhibit 2, p. 34). According to Complainant, he requested that he be provided with some type of visual aid to better enable him to see.2 According to Complainant, S1 told him to give both his request and medical documentation to S2, and that he, S1, would follow up with Complainant at another time because he had to meet a deadline. Id.
S1, however, stated that when he met with Complainant, Complainant only requested S1's assistance on a job-related issue. (Agency's Mot. Summ, J., Exh. C). According to S1, he was unable to assist Complainant at that moment because he was pressed to meet a deadline for the Director. Id. Although S1 could not recall if Complainant requested an accommodation, there was no mention of an accommodation request in S1's contemporaneous supervisory notes. (ROI, Exhibit 17; Agency's Mot. Summ. J., Exh. C).
It is undisputed, however, that later in the day on March 6, 2006, Complainant briefly spoke with S2 concerning his error rate. According to Complainant, he told S2 about his medical condition and how his medications made him drowsy and unable to concentrate. Complainant maintained that this caused him to make errors. At that point, Complainant gave S2 a multi-page letter which explained his medical condition. (Exhibit 10a of the Report of Investigation). S2 reviewed the document and gave it to the Human Resources Mission Support Specialist (MSS). (ROI, Exhibit 2; Agency's Mot. Summ. J., Exh. D). After reviewing the memorandum, MSS concluded that Complainant's document did not constitute a request for accommodation. (Agency's Mot. Summ.J., Exh. D).3
Complainant again spoke to S2 on March 9, 2006. S2 told Complainant that management had noticed many errors in his work and that he needed to improve his performance. (ROI, Exhibit 15, p. 2). In response, Complainant gave S2 a letter from the Mid-America Cardiology Center at Kansas University. This letter found at Exhibit 14, page 3 of the Report of Investigation, described Complainant's medical condition at that time. (ROI, Exhibit 2, pp. 34, 45; Exhibit 14, p.3; Agency's Mot. Summ. J., Exh. D). The letter was the first medical documentation from a physician submitted by Complainant to any management official.4 Complainant maintained that he again verbally requested that he be provided an accommodation.5 S2 disputes Complainant's testimony on this point, however. S2 testified that, when he asked Complainant directly what he wanted him to do with the letter; Complainant simply reiterated details about his medical condition and explained that the side effects from his illness caused his inadequate performance. S2 memorialized his conversation with Complainant and attached Complainant's letter, and gave both documents to MSS for her review. After reviewing the documentation, MSS again determined that the information submitted did not constitute a request for an accommodation.
On April 17, 2006, Complainant was terminated from his position, effective April 28, 2006.6 On June 26, 2006, Complainant filed a formal EEO complaint, alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), and disability (Sarcoidosis) when, on April 17, 2006, he was terminated from his position as a Contact Representative during his probationary period effective April 28, 2006. Complainant also asserts that management terminated him without considering his requests for reasonable accommodation, including a larger computer screen, partial job restructuring, a restructured work schedule or a reassignment. Complainant maintained that management provided these types of accommodations to other similarly situated Caucasian, and female employees.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On June 18, 2007, the Agency filed a motion for summary judgment. On December 11, 2007, while preparing to address the Agency's motion, the AJ learned that Complainant had died in February. The AJ therefore allowed Complainant's wife/representative to submit a written response in opposition to the Agency's summary judgment motion. She did so on December 28, 2007. After reviewing the record, the AJ issued a decision without a hearing finding that the Agency did not discriminate against and/or fail to reasonably accommodate Complainant based on his disability, race, color, or sex when he was terminated from his position as a Contact Representative. The Agency's final action implemented the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant's representative asserts that a genuine issue of material fact exists with regard to whether Complainant requested reasonable accommodations. She maintains that evidence was submitted that demonstrates Complainant initiated the conversation regarding a reasonable accommodation which included submitting documentation explaining his disability and the major life activities affected by his impairments. She also maintains that Complainant provided documentation to support his explanation for how his disability caused his work deficiencies. Accordingly, Complainant's representative argues that a decision without a hearing was improperly issued in this case and that Complainant was discriminated against.
The Agency provided no statement on appeal.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999). (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo"). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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").
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the EEOC Administrative Judge (AJ) to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review, we find that the AJ's issuance of a decision without a hearing was appropriate in this case. Although it is clear that there was a genuine dispute of fact with respect to whether Complainant verbally requested accommodations on March 6, 2006 in a conversation with S1; and March 9, 2006 in a conversation with S2, we find, for reasons that will be discussed below, that a resolution of these disputes is unnecessary and therefore is not material because it does not have the potential to affect the outcome of this case.
Reasonable Accommodation
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 he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a "qualified" individual with a disability, pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002) ("Enforcement Guidance").
For purposes of this decision only, we will assume that Complainant established that during the period at issue, he was an individual with a disability.
Qualified Individual with a Disability
After Complainant has demonstrated that he is an individual with a disability, he must then show that he 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 Complainant failed to establish that, during the period at issue, he satisfied the requisite skill, experience, education, and other job-related requirements of his employment position. The record indicates that throughout his employment he maintained a high error rate and did not show improvement. According to S1, Complainant, even after seven months of employment, had an "extremely" high error rate, and that he, S1, and other supervisors were continually sending Complainant copies of his work products with their comments and explanations for corrections and improvement. He further stated that they sat down with Complainant to review his errors and that he, S1, came in early on two days and held training with Complainant and other employees.
Therefore, the issue becomes is whether Complainant could have performed the essential functions of his position with a reasonable accommodation. Assuming for the purposes of this decision that Complainant verbally requested accommodations from S1 and S2 as he maintained, we find that there is no medical documentation in the record that would support these requests. For example, Complainant stated that, on March 6, 2006, he told S1 that his vision was blurred and the computer screen was too small, and he requested that he be provided some type of visual aid or a larger screen to better enable him to see and that he requested that his position be restructured. The record indicates, however, that even though on March 5 and 6, Complainant was told that he needed to provide sufficient medical documentation to support an accommodation request, no such documentation was ever submitted.
The Commission has held that if an individual's disability or need for reasonable accommodation is not obvious, and the person does not provide the reasonable documentation requested by the employer, then the individual is not entitled to reasonable accommodation. Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 16, 2012). A review of the documents that were submitted by Complaint indicate that they do not specifically described how Complainant's condition affected his ability to perform his duties as a Contact Representative. Nor does the documentation describe how Complainant's duties could be modified to adequately enable him to perform his work. Like the AJ, we find the information provided by Complainant simply describes his medical condition, but offered no specific information on how his condition affected his health or whether he required an accommodation to perform the duties of his position.
In addition to the above, we note the following specific reasons why Complainant has not established an entitled to the accommodations he sought. An employee is required to show a nexus between his disabling condition and the accommodation he requested. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002) (citing Wiggins v. U.S. Postal Serv., EEOC Appeal No. 01953715 (Apr. 22, 1997)). With respect to his request for a visual aid or a larger computer screen, we find no such nexus. The record indicates that Complainant was terminated from his position due to his high error rate with regard to his two critical elements dealing with telephone intake and case processing. As stated above, the "Quality of Phone Intake" element measured an employee's accuracy at telephone intake while the "Quality of Cases Processed" element measured an employee's accuracy in providing information to customers. Complainant did not explain how his accuracy on these elements would have improved had he been provided with a larger screen. In this regard, we note his statement to his supervisors his medical condition affected his short-term memory, and that he was also concerned about his father's health.
Regarding Complainant's contention that his position could have been restructured, we note that an agency never has to reallocate essential functions as a reasonable accommodation but can do so if it wishes. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002, Question 15 (as revised Oct. 17, 2002). The two performance elements that resulted in Complainant's termination were both critical elements not marginal functions; therefore, the Agency was not required to remove them.
With respect to his request for a reassignment which he maintained was made on the same day he was served with his termination notice, Complainant would have to show that there was a vacant, funded position for which he was qualified and to which he could have been reassigned. Complainant has an evidentiary burden in such reassignment cases to establish that it is more likely than not (preponderance of the evidence) that there were vacancies during the relevant time period into which she could have been reassigned. See Mills v. Department of the Treasury, EEOC Appeal No. 0120112511 (April 9, 2013). The record before us does not establish that, more likely than not, there was a vacant, funded position, for which Complainant was qualified and to which he could have been reassigned.
Finally, both Complainant and his representative maintained that the Agency failed to engage in the interactive process here, we note, however, that an agency's failure to engage in the interactive process does not, by itself, demand a finding that an employee was denied a reasonable accommodation. Broussard v. United States Postal Service, EEOC Appeal No. 01997106 (September 13, 2002). Rather, to establish a denial of reasonable accommodation, a complainant must show, as Complainant in this case did not, that the failure to engage in the interactive process resulted in the agency's failure to provide a reasonable accommodation. Id. Here, we find that Complainant's failure to provide reasonable documentation caused the failure to receive a possible accommodation. We also note that he failed to establish an entitlement to the accommodations he sought.
Disparate Treatment
Complainant also alleged that he was terminated from his position because of his race, color, sex and disability. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on the above factors, the Agency provided a legitimate, non-discriminatory reason for terminating Complainant, i.e., his failure to meet the expectations of his position from June 2005 through April 2006. The AJ found that Complainant failed to establish that the Agency's reason was a pretext. Upon a review of the record, we, for the most part, agree with the AJ's analysis. Among other things, the record does not establish that any of the individuals that Complainant's maintains were treated differently than he was were in fact treated differently. In this regard, Complainant did not establish that these individuals were not terminated after consistently maintaining a high error rate during their probationary period.
The Commission has long held where a Complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Coe v. Department of Homeland Security, EEOC Appeal No. 0120091442 (October 7, 2011); Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)).
CONCLUSION
Therefore, after a careful review of the record, including Complainant's arguments on appeal, and arguments and evidence not specifically discussed in this decision, the Commission AFFIRMS the Agency's final order adopting the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
____6/20/13______________
Date
1 Complainant died on February 4, 2007.
2 In addition to requesting a visual aid to help him see his computer screen better, Complainant also stated that he asked for a restructured work schedule.
3 A fair reading of this document supports the conclusion that it was not a request for an accommodation. Complainant described in detail his medical condition, his prescribed medications, their side effects, and how those effects affected his overall health. He set forth his belief that his error rate was caused by the lack of adequate training, the side effects from his illness and medication, the alleged harassing treatment that he was subjected to by S1 and the different treatment that he felt he was receiving which he speculated might be due to his race. The memorandum, however, cannot be described as medical documentation from a treating physician.
4 A review of this document indicates that it is a December 6, 2005 letter written by Complainant's Cardiologist to a Primary Care Physician. The letter indicates that Complainant had been admitted to the hospital between October 25 and 28, 2005 because of shortness of breath; and that it was determined that he had an irregular heartbeat. The letter further discussed Complainant's other medical concerns. As noted above, the letter was written by one doctor to another doctor but was not a specific request for an accommodation on behalf of Complainant.
5 Complainant did not indicate what the specific accommodation he asked S2 for on March 9.
6 According to Complainant, on April 17, 2006, he asked MSS for another position or restructuring of his job as an accommodation.
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0720070074
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
11 0120090482