0120101347
09-28-2012
Evelyn Smith, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Evelyn Smith,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120101347
Hearing No. 531-2009-00163X
Agency No. OCO-08-0576-SSA
DECISION
On February 15, 2010, Complainant filed an appeal from the Agency's January 19, 2010, final decision concerning her 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. 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 decision which found that Complainant failed to demonstrate that she was discriminated against as she alleged.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to discrimination and denied a reasonable accommodation on the basis of her disability when she was denied a disabled parking space on May 19, 2008.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist at the Agency's Office of Management Operations Support, Center for Information Technology in Baltimore, Maryland. Complainant applied for a medical parking space, in order to be closer to her building but was denied. Complainant identified her conditions as migraine headaches since she was 12, hypertension and high blood pressure for the past 10 years, bone spurs in her neck, degenerative joint disease and osteoarthritis for the last 14 years. Complainant contends that the current parking space that she is assigned is inadequate as the space is too small. She complains that she has difficulty opening her car door and getting out of her car when there are other vehicles parked on both sides of her space. Moreover, she reported that her parking space was over 200 feet from the building and because it is so far from the building she has fallen three times attempting to get into the building. Complainant lists the major life activities impacted by her medical conditions as walking, standing, sitting, lifting, bending and reaching. Complainant also stated that she uses a cane and a wheel chair so that she can get from point A to point B but maintains that once she is in the building she has no problem performing her IT duties. Complainant also possesses a State of Maryland Parking Sticker for her care.
On May 1, 2008, Complainant submitted a request for the second time for a medical parking space. With this request, she submitted a SSA Form 501 dated April 7, 2007, and also indicated that she used a wheelchair and that walking, getting up, and most movements were painful. She also submitted a document that indicated that since 1999, she has had degenerative joint disease. The document was provided by her physician dated April 13, 2007, and had restrictions for migraine headaches, hypertension, and osteoarthritis. Also submitted was a document from her physician dated June 29, 2006, stating that Complainant was diagnosed with cervical disc disease, which caused neck pain, headaches, and affected her ability to concentrate on work. The letter also described her migraine headaches and her progressive degenerative joint disease, which made it difficult for her to ambulate for significant distances. These documents were submitted to the Agency's Public Health Service Physician for review. The public health physician determined that the documentation did not demonstrate that Complainant had a medical condition substantially limiting her ability to walk, or otherwise qualified her for a medical parking space. Complainant was told in the denial letter dated May 19, 2008, that she could request reconsideration by submitting current and objective medical documentation regarding her conditions, which included her diagnosis, and symptoms, the severity and length of her conditions, prognosis, the manner in which her condition affected her ability to walk, the kind of testing done, and any treatment administered or recommended. She was also told that if she used a wheelchair, she should submit documentation regarding her evaluation for the wheelchair. Complainant maintained that all of the documentation mentioned had been previously submitted but her requests were denied.
Complainant also indicated that at least 24 other individuals who have been certified by the State of Maryland for disability parking have also been denied medical parking by the public health physician. Complainant believes that the public health physician has made the process burdensome for disabled workers and that the true reason that hers and others requests for disability parking has been denied is because the Agency does not want to impact management parking spaces.
On July 16, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (degenerative joint disease, migraine headaches, hypertension, bone spurs in neck and osteoarthritis) when on May 19, 2008, she was denied reasonable accommodation in the form of a disabled parking space.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing but the AJ denied the hearing request on the grounds that Complainant failed to comply with a discovery order. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency maintained that Complainant failed to show that she was an individual with a disability as she failed to show that a major life activity was impacted by her condition. The Agency indicated that it based its decision on the requirements for disabled employee parking under the General Services Administration's (GSA) regulation or the Agency's procedures implementing the GSA's regulations and the Rehabilitation Act. Moreover, the Agency found that Complainant's request for disability parking was denied because she submitted old medical documentation with her request. The Agency explained that the medical documentation submitted did not demonstrate that Complainant had medical conditions that substantially limited her ability to walk and which qualified her for medical parking. Further, Complainant submitted a note from her physician that indicated that she was being evaluated for a wheelchair for osteoarthritis but the record did not include any follow-up reports indicating that a wheelchair was deemed necessary.
The Agency indicated that although it has approved approximately 90% of medical parking requests, it denied Complainant's requests on August 10, 1999, November 3, 2005, and most recently, May 19, 2008, because she failed to provide the medical documentation required to support the award of a space. The Agency noted that it offered to show Complainant samples of the type of medical documentation that she needed to submit but she failed to seek their assistance. The Agency found that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency's requirements are burdensome to disabled employees. In response, the Agency requests that its finding of no discrimination be affirmed.
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 Chapter 9, � VI.A. (November 9, 1999) (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
Under the Commission's regulations, an Agency is required to make a reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2 (o) and (p). For purposes of analysis, the Commission shall assume, without finding, that Complainant is a qualified individual with a disability.
The Commission finds that Complainant has not shown that the Agency wrongfully denied her reasonable accommodation. The record supports the Agency's position that it denied Complainant's request for a parking permit because her medical documentation was insufficient. Specifically, Complainant's documentation did not state how frequently or to what extent her medical conditions affected her ability to walk. Further, Complainant's medical documentation did not show that the requested accommodation was necessary.
The Agency explained that it needed the additional medical documentation in order to evaluate Complainant's requested accommodation so that it could determine what accommodation would best serve the needs of the Agency and Complainant. The record reveals that Complainant was given the opportunity to submit additional medical documentation. She was also given specific information as to the type of documents that the Agency needed. The record shows however, that Complainant failed to provide the requested documentation. 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. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002) at 12-13.1
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 FAD which found that Complainant failed to show that she was subjected to discrimination.
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
__9/28/12________________
Date
1 We further note that the Commission has recently held that: 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. Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 16, 2012).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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