01a12653
05-15-2003
Janice R. Philippe v. Social Security Administration 01A12653 05-15-03 . Janice R. Philippe, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Janice R. Philippe v. Social Security Administration
01A12653
05-15-03
.
Janice R. Philippe,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A12653
Agency No. 97-0078
Hearing No. 140-98-8019X
DECISION
On March 10, 2001, Janice R. Philippe (hereinafter referred to as
complainant) initiated a timely appeal to the Equal Employment Opportunity
Commission (Commission) with regard to her complaint of discrimination
in violation of � 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq. The appeal is accepted by this Commission in
accordance with 29 C.F.R. � 1614.405. Based upon a review of the record,
and for the reasons stated herein, it is the decision of the Commission
to REVERSE the final agency action.
ISSUE PRESENTED
The issue on appeal is whether complainant proved, by a preponderance
of the evidence, that she was discriminated against on the basis of her
disability (seizure disorder and pre-diabetes) when the agency denied
her request for a reassignment.
BACKGROUND
Complainant filed a formal EEO complaint in August 1996, raising
the above-referenced claim of discrimination. The agency accepted
complainant's complaint for processing, and conducted an investigation
with regard to the matter raised therein. Following an administrative
hearing, the Administrative Judge (AJ) issued a decision finding that
complainant was not discriminated against with regard to the matter
alleged. The AJ initially found that complainant was not an individual
with a disability, stating that her conditions completely impaired,
rather than substantially impaired her ability to work. The AJ further
stated that, assuming complainant was an individual with a disability,
the agency offered her accommodation in the form of a modified work
schedule. The AJ noted that, with regard to complainant's allegation
of disparate treatment, she failed to show that the stated reason for
the action, that is, the accommodation must be job related and not
for personal use such as transportation, was pretextual. The agency,
in a decision dated February 22, 2001, implemented the AJ's decision.
It is from this decision that complainant now appeals.
According to the record, complainant, a Claims Representative, requested
a hardship transfer to the agency's Augusta, Georgia office in October
1994, in order to be close to her ailing mother. Complainant stated that
she was led to believe she would receive the transfer, and purchased
a home in Georgia. Complainant was ultimately offered, and accepted
a job in Aiken, South Carolina, approximately 36 miles from her new
home, in October 1995. Complainant requested reasonable accommodation
in the form of a transfer to Augusta in January and February 1996.
At the time, complainant submitted a letter from her neurologist (Dr. W)
recommending that she limit her driving. Complainant stated that, prior
to transferring to the South Carolina office, her condition had been under
control, but that the commute caused her to experience more seizures.
After her request was denied, complainant requested reconsideration, and
submitted a second letter from her physician which stated that she should
avoid driving. In April 1996, the Area Director denied complainant's
request, reasoning that it did not directly impact her ability to perform
her job. Complainant's subsequent request was again denied in May 1996.
The Area Director and Regional Commissioner suggested that complainant
consider modifying her work schedule or using a car pool, as it appeared
she was having difficulty driving to work. Complainant stated that she
was already working a flexible schedule, and that a compressed schedule
left her tired such that she was prone to seizures. In addition,
complainant stated that she advised a management official that she was
unable to car pool, as other employees worked compressed schedules.
Complainant ultimately retired from the agency in December 1997.
The record reveals that complainant was diagnosed with focal epilepsy
as early as March 1993. At the time, her seizures were under control,
however her prior neurologist (Dr. C) stated that her commute, at that
time from Ohio to Michigan, may impact on her condition, as fatigue
could trigger a seizure. The record includes a letter from Dr. W
dated January 23, 1996, stating that complainant experienced partial
seizures, and should limit driving as much as possible. On March 23,
1996, Dr. W recommended that complainant avoid driving. The record also
includes a letter from a third neurologist (Dr. K) stating that stress
and fatigue increased the risk of seizures, and, as such, it would be
helpful if complainant avoided working excessively long hours. Finally,
a fourth neurologist (Dr. L) noted, in February 1996, that complainant
would be at a somewhat higher risk for seizures if she was overly tired,
and that driving 25 to 30 miles at the end of the day may predispose
her to such incidents.
Complainant stated that she experiences seizures primarily at night
and in the morning, but has had several at work. She noted that the
seizures involve unpleasant sensations, vertigo, speech impairment,
movement of the head, arms, and legs, nausea, and cognitive disturbances,
and sometimes impaired consciousness. Complainant stated that the
drive to South Carolina caused her to experience stress, anxiety,
and fatigue, which increased the risk of seizures. Complainant stated
that, when she has a seizure, she is unable to walk, speak, and work,
and that her condition limits her driving. Complainant indicated that
she has been on approximately 10 different medications since 1993, and
that her seizures have only decreased since 1998. Complainant noted
that her medications cause, among other things, a reduced blood count,
blurred vision, hearing loss, speech problems, fatigue, dizziness, and
loss of balance which affects her ability to walk. Complainant stated
that she now wears special glasses to correct her vision problems,
and has been diagnosed with mild hearing loss.
According to the record, eight Claims Representatives either transferred
or were promoted to the Augusta office from 1994 through August 1996,
including five individuals who received hardship transfers to the office.
Several individuals performed the same work as complainant.
The Area Director stated that he viewed complainant's request as a
transportation issue, which was not the basis for granting accommodation.
He stated that he did not ask for further clarification of complainant's
condition. He noted that complainant was given a detail assignment to
Augusta, and that the Field Office Manager there indicated that she had
poor technical skills. The Area Director, however, noted that he had no
documentation to support the claim of poor performance by complainant
while on detail. Further, the Operations Supervisor and Field Office
Manager in South Carolina stated that complainant was qualified for the
Claims Representative position.
It is noted that while the EEO Manager stated that complainant was
offered a change in tour, she acknowledged that she did not know if such
an action would benefit complainant. Further, while the Manager noted
that she recommended that management offer a part-time schedule, she
could not confirm that such an accommodation was actually presented to
complainant. Finally, the Manager stated that she suggested a compressed
work schedule, but noted that she was not sure whether the office had
such an arrangement.
ANALYSIS AND FINDINGS
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).
Under the Commission's regulations, an agency is required to make
reasonable accommodation to 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. 29 C.F.R. � 1630.2(o);
29 C.F.R. � 1630.2(p). EEOC Regulation 29 C.F.R. � 1630.2(m) provides
that an individual is qualified if [she/he] can perform the essential
functions of the "position such individual holds or desires." Thus, the
inquiry regarding whether an individual is qualified is not limited to
the position actually held by the employee, but also includes positions
that the employee could have held as a result of job restructuring
or reassignment. Cf. Hawkins v. United States Postal Service,
EEOC Petition No. 03990006 (February 11, 1999); Van Horn v. United
States Postal Service, EEOC Appeal No. 01960159 (October 23, 1998).
"Only after determining that reassignment to a vacant position was not
possible or would result in an undue hardship, would the Rehabilitation
Act permit the agency to conclude that [a complainant] is not a qualified
individual with a disability." Kitaura v. United States Postal Service,
EEOC Petition No. 03980089 (March 11, 1999)
After a careful review of the record, the Commission finds that the AJ's
determination that complainant was not subjected to discrimination is
not supported by substantial evidence. In order to establish a prima
facie case of disability discrimination, complainant must show that she
is an individual with a disability as defined in 29 C.F.R. � 1630.2(g),
and that she is a qualified individual with a disability as defined
in 29 C.F.R. � 1630.2(m). An individual with a disability is one who:
1. has an impairment which substantially limits one or more major life
activities; 2. has a record of such an impairment; or 3. is regarded as
having such an impairment. 29 C.F.R. �1630.2(g). Major life activities
include caring for one's self, performing manual tasks, walking, seeing,
breathing, learning, and working. 29 C.F.R. �1630.2(i).
We find that complainant is an individual with a disability within
the meaning of the regulations by virtue of her seizure disorder.
As stated, the record shows that complainant was diagnosed with the
condition in 1993. Complainant indicated that, when she has a seizure,
she is unable to speak, has uncontrollable movement of her head, arms,
and legs, and, at times, experiences impaired consciousness. Complainant
acknowledged that she has taken various medications in an attempt to
control her seizures. It is noted that the Supreme Court has held that
whether measures mitigate an individual's impairment should be taken into
account in determining if the individual is disabled. Sutton v. United
Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service,
Inc., 527 U.S. 516 (1999); Albertsons, Inc. v. Kirkingburg, 527 U.S. 555
(1999). Complainant's uncontroverted testimony shows that her medication
was changed approximately 10 times during a five-year period, and caused
her to experience blurred vision, dizziness, speech problems, tinnitus,
and problems with balance. Further, even while taking medication,
complainant was subject to seizures if she was fatigued or under stress.
Thus, we find that complainant's seizure disorder, even in the medicated
state, substantially limits her cognitive functioning and ability to
walk and speak. Complainant is, therefore, substantially limited in
the major life activities of thinking, walking, and speaking. Further,
the record shows that complainant was able to perform the essential
functions of her Claims Representative job in at least a satisfactory
manner, as evidenced by her performance evaluations.
The agency asserted that it offered complainant reasonable accommodation
in the form of a modified work schedule, and the AJ found the offer to
be reasonable.<1> Specifically, the agency indicated that complainant
was advised that she could alter her work hours in order to car pool,
or to potentially avoid traffic. Complainant, however, stated that
she was already working a flexible schedule. Further, while the agency
suggested that complainant car pool to and from work, complainant stated
that she informed a management official that she was unable to do so,
because other employees in the South Carolina office worked compressed
schedules, which would cause her to work longer hours. While the AJ
noted that complainant never informed the agency that such options did
not suit her needs, the AJ acknowledged that complainant continued to
request accommodation and questioned the agency's denial of her request
for reassignment. Thus, we find the AJ's determination with regard to
the modified work schedule was not supported by substantial evidence.
Further, we find that the AJ erred in accepting the agency's reliance on
its policy that reasonable accommodation cannot include accommodation
with regard to transportation. It is noted that Commission precedent
has established that a request for a shorter commuting time due to a
disability triggers the agency's responsibility under the Rehabilitation
Act. See Hupka v. Department of Defense, EEOC Appeal No. 02960003
(August 13, 1997) (The agency violated the Rehabilitation Act when it
refused to allow a complainant with a disability that was exacerbated by
his long commute to work at home or at a local alternative work site,
but did not contend that doing so would be an undue hardship and did
not offer alternative reasonable accommodation); Kubik v. Department
of Transportation, EEOC Appeal No. 01973801 (July 9, 2001). Thus,
the agency had an obligation to consider reassigning complainant to its
Augusta facility, unless it could show that the accommodation would cause
an undue hardship. See Enforcement Guidance: Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act, N-915.002
(rev. October 17, 2002) (Guidance II), 41 (An employer's obligation to
offer reassignment to a vacant position is not limited to vacancies
within an employee's office, branch, agency, department, facility,
personnel system, or geographical area).
As stated, the record showed that several individuals were transferred
into Claims Representative positions at the Augusta office during
the period in question. Further, a number of those individuals were
performing the same work as complainant, and the union representative
stated that the Augusta office was one of two offices with the highest
number of claims of the type handled by complainant. The agency has
not provided sufficient evidence to show that it would have been an
undue hardship to reassign complainant to the Augusta office. Thus, we
find that the agency failed to meet its burden of providing reasonable
accommodation to complainant.
As relief, complainant requested, among other things, compensatory
damages. It is noted that, by demonstrating that it made a "good faith"
effort to provide accommodation, an agency can protect itself from
having to pay certain compensatory damages. See 42 U.S.C. � 1981a(a)(3)
(1994). As stated above, agency officials repeatedly indicated that they
never considered complainant's request for a transfer as a request for
reasonable accommodation, but merely viewed it as a matter of convenience.
Further, while the EEO Manager indicated that she made suggestions
to management, including a part time schedule, a change of hours, and
a compressed schedule, she acknowledged that she did not know whether
these options would actually benefit complainant, or were in fact offered
to her. Thus, we find that the agency failed to act in good faith in
its efforts to provide complainant with accommodation, and, as such,
she is entitled to compensatory damages.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to REVERSE the agency's final decision.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall conduct a supplemental investigation to determine
whether complainant is entitled to compensatory damages for the denial
of reasonable accommodation, as requested during the investigative stage
of her complaint. Within fifteen (15) days of the date this decision
becomes final, the agency shall notify complainant of her right to present
evidence to the agency regarding her claim for damages, including medical
bills and statements from family members and doctors. Complainant shall
provide objective evidence that the damages in question were a result of
the agency's discrimination and of the amount of the claimed damages.<2>
Thereafter, the agency shall issue a final decision as to complainant's
compensatory damages claim. The supplemental investigation and issuance
of the final decision must be completed within sixty (60) calendar days
of the date this decision becomes final.
2. The agency shall reimburse complainant for any leave used as a result
of its failure to provide her with reasonable accommodation.
3. The agency shall conduct eight (8) hours of training for the
responsible management officials cited herein, including the Area
Director), addressing their responsibility under equal employment
opportunity law. The training shall place special emphasis on preventing
disability discrimination.
4. The agency shall consider appropriate disciplinary action against the
Area Director in connection with the denial of 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 reason(s)
for its decision not to impose discipline.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include evidence that corrective action
has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Augusta, Georgia facility copies of
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 (H0900)
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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
__________________________________
Frances M. Hart, Executive Officer
Executive Secretariat
____05-15-03______________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1The Commission finds no evidence to support the EEO Manager's assertion
that complainant was offered a part-time schedule, and, in fact, the
manager stated that she could not confirm that such an offer was made.
2The Commission's decision in Carle v. Department of the Navy, EEOC Appeal
No. 01922369 (January 5, 1993), describes in detail the type of evidence
which should be presented in support of a claim for compensatory damages.