0120120497
04-17-2012
Gregory A. Clemons, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Gregory A. Clemons,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120497
Agency No. ARCEVICK11AUG0360
DECISION
Complainant filed a timely appeal with this Commission from a final Agency Decision (FAD) dated October 13, 2011, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked for the Agency as a Park Ranger at Lake Ouachita in Royal, Arizona. On September 28, 2011, he filed a formal complaint alleging that he was discriminated against based on his disability (Diabetes, vision impairment) when effective August 28, 2011, the Agency rotated him to the night shift and failed to reasonably accommodate his disability.
Complainant's job includes patrolling the park to enforce rules and regulations and provide visitor assistance, which involves driving. He is on rotating shifts, which includes night shifts. On February 1, 2011, Complainant gave his supervisor a letter by his optometrist stating that he had a significant decrease in visual acuity and depth perception with night driving, especially with the glare from headlights, and recommended limited night driving. By email on February 1, 2011, the supervisor excused Complainant from on the job nighttime driving. The supervisor wrote that after darkness Complainant would ride with others when they were available, and when he was working alone he would return to the Ranger Office to perform other duties.
Complainant was scheduled to return to the night shift again in the summer of 2011, and reminded his supervisor of his vision impairment and optometrist's letter. On July 11, 2011, in a follow up of an earlier oral discussion, Complainant sent an email to his supervisor asking for a reasonable accommodation. Complainant wrote one reasonable accommodation was in the above February 1, 2011, email, which he recounted verbatim. He wrote that this accommodation was a reasonable solution because it worked "just fine," and nothing changed in the way business was done. He wrote that if this was no longer suitable, another reasonable accommodation would be to leave him on the day shift, and that he was open to any other suggested accommodations that were reasonable.
On July 12, 2011, Complainant's Supervisor learned from EEO Specialist 1 that the Agency has formal standard operating procedures (SOP) for processing requests for reasonable accommodation. Under the SOP, Disability Program Managers are from the Agency's EEO offices, and serve as a resource to supervisors and managers on reasonable accommodations, facilitate the reasonable accommodation process, and retain a copy of the reasonable accommodation file.
The record does not show whether EEO Specialist 1 was a Disability Program Manager. Nevertheless, on July 13, 2011, Complainant emailed EEO Specialist 1 and two union officials a completed copy of an Agency SOP Request for Reasonable Accommodation form. He wrote that he was unable to safely drive at night due to night blindness issues, explaining that oncoming headlights cause temporary blindness in his left eye and blurriness in the right eye, causing him to tend to drive off the road onto the shoulder. He wrote he no longer drives his privately owned vehicle at night unless required to do so by his supervisor, and as an accommodation requested to work the day shift or change his duty hours to where he is not driving at night.
On July 14, 2011, Complainant's supervisor made a follow up request to Complainant for additional medical documentation, attaching an SOP Medical Information Sheet form. In response, Complainant obtained additional medical information which his optometrist completed on July 21, 2011 and July 22, 2011. Complainant's visual acuity numbers in response to glare were worse than the numbers in February 2011; the optometrist described Complainant as having blindness, and opined he should not drive at night, indicating doing so created potential harm to Complainant and others. On July 26, 2011, an Agency Occupational Health Physician wrote that based on a review of the medical evidence presented by Complainant, he should not be allowed to drive a government vehicle at night.
By memorandum dated August 10, 2011, Complainant's supervisor acted on Complainant's July 11, 2011, emailed reasonable accommodation request. The supervisor excused Complainant from driving at night on the job, and informed him he was returning to the night shift on August 28, 2011. On the first day of his nightshift, Complainant emailed two union officials that he was camping out in the park and taking leave because of the night shift. Meanwhile, he contacted an EEO counselor. According to the counselor's report, Complainant alleged that on July 12, 2011, he requested to stay on the day shift as a reasonable accommodation. According to the counselor's report, Complainant's supervisor stated he was aware Complainant slept in his truck on a campground at the end of his shift because of his inability to drive home at night.
In his complaint, Complainant wrote that the updated medical information indicated his vision worsened and the Agency doctor opined he should not drive a government vehicle at night. He wrote that he asked his supervisor for a reasonable accommodation so he would not have to drive at night, but was assigned to the night shift. Complainant wrote he can't drive his personal vehicle at night, so after his shift he would stay in the park until it was light enough to drive home. He wrote that after unsuccessfully trying to sleep in his vehicle, he purchased a tent and had to pay camping fees each night, or he would take leave to go home before dark. He asked to work during the day.
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not aggrieved because he got the accommodation which he requested from his supervisor on July 11, 2011, i.e., a renewal of the accommodation to work at night and be excused from driving. The Agency noted that in his accommodation request Complainant indicated this accommodation was perfectly acceptable.
On appeal, Complainant argues that he was willing to accept the accommodation he requested on July 11, 2011, prior to getting the updated medical documentation showing his vision worsened and he could not do any driving at night. He contends that the accommodation he received is not effective. He argues that by not scheduling him during the day and excusing him from driving at night he is not performing an essential function of his job --- patrolling. He also argues that working at night leaves him without a viable way to get home after work. He writes that sleeping in the park and then driving at home in the morning did not work because he was unable to get sufficient sleep and this caused his glucose level to get even more out of control. He writes that as a result he quit camping and has been taking leave, including leave without pay.
In opposition to the appeal, the Agency reiterated the finding in its FAD that Complainant is not aggrieved because he got the accommodation he requested, his preferred accommodation. The Agency argues that between his July 11, 2011, request for accommodation and the Agency's approval thereof on August 10, 2011, Complainant did not indicate to the Agency that he was modifying his request, even after receiving his updated medical information. It argues that where an employee receives the exact accommodation he requested, he can't argue it was unreasonable, and hence Complainant is not aggrieved. The Agency argues that the information Complainant provides on appeal about his sleep disruption and fatigue were not identified in his July 11, 2011, accommodation request, and the Agency is only required to provide accommodation for a known condition. The Agency writes, however, that an employee can always request modifications to accommodations previously provided, and based on Complainant's appeal argument, it will initiate contact with him to see if further accommodation is being requested.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Complainant's complaint states a claim because he made a request for a reasonable accommodation and contends he was not given an effective reasonable accommodation. The Agency's argument that Complainant is not aggrieved because he got the accommodation he requested goes to the merits of his complaint, not whether it states a claim. We also find that Complainant's complaint is broad enough that it includes his claim that after he made his request for reasonable accommodation on July 11, 2011, including in the weeks after he started working the night shift on August 28, 2011, he came to realize that working at night in the park was not an effective accommodation for his disability, and the Agency was aware of this. We note that the record contains a reasonable accommodation request Complainant emailed to EEO Specialist 1 on July 13, 2011, where his requested accommodation was working during the day. Also, according to the counselor's report, Complainant's supervisor said he was aware Complainant was sleeping in his truck on the campground after his shift ended because of his inability to drive home at night.
CONCLUSION
The Agency's decision to dismiss Complainant's complaint, as defined herein, is REVERSED.1
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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
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
April 17, 2012
__________________
Date
1 Complainant's complaint is broad enough that it includes his claim that after he made his request for reasonable accommodation on July 11, 2011, including in the weeks after he started working the night shift on August 28, 2011, he came to realize that working at night in the park was not an effective accommodation for his disability, and the Agency was aware of this.
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0120120497
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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