05970773
06-24-1999
Patricia R. Purcell, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.
Patricia R. Purcell v. Department of Veterans Affairs
05970773
June 24, 1999
Patricia R. Purcell, )
Appellant, )
)
v. ) Request No. 05970773
) Appeal No. 01955454
Togo D. West, Jr., ) Agency No. 940616
Secretary, )
Department of Veterans Affairs,)
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
On May 20, 1997, Patricia R. Purcell (appellant) timely initiated
a request to the Equal Employment Opportunity Commission (EEOC
or Commission) to reconsider the decision in Patricia R. Purcell
v. Department of Veterans Affairs, EEOC Appeal No. 01955454 (April
24, 1997). EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved
an erroneous interpretation of law, regulation, or material fact, or
misapplication of established policy, 29 C.F.R. �1614.407(c)(2); or the
previous decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3).
Appellant filed a formal EEO complaint alleging that the agency
discriminated against her on the basis of disability (alcoholism) when
she received a rating of "unacceptable" on her 1992-1993 performance
appraisal. The agency issued a final decision finding no discrimination,
which the previous decision affirmed on appeal. Purcell v. Dept. of
Veterans Affairs, EEOC Appeal No. 01955454 (April 24, 1997). The previous
decision found appellant to be a qualified individual with disability,
but further found that, even assuming arguendo that the agency was
aware of appellant's disability, the agency was not required to provide
appellant with a "firm choice" agreement<1> as a reasonable accommodation.
The previous decision noted that the provisions of the Americans with
Disabilities Act which were incorporated into the Rehabilitation Act
effectively removed the requirement of a "firm choice" offer.
In her request for reconsideration, appellant argues that the Commission
should provide "clarification guidance to agencies regarding the
extent of reasonable accommodation required under the Rehabilitation
Act." Appellant mischaracterizes the previous decision insofar as she
states that the previous decision found that the agency was aware of
her disability. Appellant's request meets none of the criteria for
reconsideration,<2> and so is DENIED.
An agency must make reasonable accommodation for the known physical or
mental limitations of a qualified disabled employee, unless the agency
can demonstrate that accommodation would work an undue hardship on
its operations. 29 C.F.R. �1614.203(c); see McCullough v. U.S. Postal
Service, EEOC Request No. 05950539 (April 25, 1996). Here, however,
the record reflects that appellant did not inform the agency of her
disability until after she received the performance appraisal at issue.
Further, although the agency may have had reason to suspect the existence
of appellant's disability, appellant also did not request reasonable
accommodation until after she received the performance appraisal.<3>
Appellant then attempted to excuse her performance deficiencies by
informing the agency that she was an alcoholic, and requesting what
amounted to retroactive reasonable accommodation.
It is the responsibility of the individual with disability to request
a needed reasonable accommodation. See EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act (March 1, 1999), at 8-10. An employer is only obligated
to initiate discussion of reasonable accommodation when: (1) it knows
that the employee has a disability; (2) it knows or has reason to know
that the employee is experiencing workplace problems because of the
disability; and (3) it knows or has reason to know that the disability
prevents the employee from requesting accommodation. Id. at 51-52.
Not withstanding that the agency may have suspected the existence of
appellant's disability, the conditions which would have triggered a
further duty to inquire were not met.
Further, reasonable accommodation is always prospective, meaning that
even once appellant disclosed her disability and requested reasonable
accommodation, she was entitled to accommodation only from the date
of such disclosure and request forward. Id. at 48-49. Moreover, an
employer is not required to excuse an employee from meeting conduct
and performance standards that are uniformly applied, job-related, and
consistent with business necessity, although the employer must make
reasonable accommodation to help the employee meet the standards in
the future if the employee is retained following a violation of such a
standard.<4> See id., 47-49; EEOC Enforcement Guidance on the Americans
with Disabilities Act and Psychiatric Disabilities (March 25, 1997)
(ASCII text) at 14.
Upon review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request does not meet any of the criteria of 29 C.F.R. �1614.407(c).
Accordingly, it is the decision of the Commission to DENY appellant's
request for reconsideration. The decision in Appeal No. 01955454
remains the Commission's final decision. There is no further right
of administrative appeal from the decision of the Commission on this
request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
June 24, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1In a "firm choice" agreement, the alcoholic employee with performance
or conduct problems is warned that he or she will face disciplinary
action, up to and including removal, if he or she does not enter and
follow through a program to treat alcoholism. Johnson v. Dept. of the
Interior, EEOC Petition No. 03940100 (March 28, 1996).
2As noted in the previous decision, employers are no longer required
to offer an employee a "firm choice" agreement. Johnson, EEOC Petition
No. 03940100; EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act (March 1, 1999),
at 48.
3Appellant acknowledges that she never informed the agency that she was
an alcoholic, and that her performance was deficient.
4While it is not clear whether appellant actually was placed on
a performance improvement plan (PIP) subsequent to receiving the
"unacceptable" rating, as of February 1994, her performance had improved
to the "fully successful" level, and the agency indicated that no adverse
action was contemplated on account of the "unacceptable" rating.