Paul R. McDonnell, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 13, 2002
01A04036 (E.E.O.C. Sep. 13, 2002)

01A04036

09-13-2002

Paul R. McDonnell, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Paul R. McDonnell v. Department of the Navy

01A04036

September 13, 2002

.

Paul R. McDonnell,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A04036

Agency No. 99-68585-004

DECISION

INTRODUCTION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning 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. The appeal is accepted

pursuant to 29 C.F.R. � 1614.405.

ISSUE PRESENTED

The issue presented herein is whether complainant has shown that the

agency unduly delayed providing him with a reasonable accommodation when

it requested medical documentation.

BACKGROUND

The record reveals that complainant had been a Program Assistant with

the agency when he re-injured his back in April 1997. At that time,

the Office of Worker's Compensation Programs accepted his claim for the

re-injury. The record shows that complainant's physician (Physician)

restricted him from lifting over ten pounds, sitting for more than

thirty minutes without a five minute break, standing for more than

fifteen minutes without a five minute break, and repetitive bending,

squatting, kneeling, and crawling. The Physician also indicated that, in

connection with his herniated disc, complainant had a complete drop foot

and experienced severe weakness and numbness in his left leg. In August

1998, the Physician released complainant to return to work in a part-time

capacity (four hours a day) under the same restrictions as listed in

April 1997. However, the Physician also indicated that complainant may

not return to work in the Program Assistant position. On December 7,

1998, the agency received another letter from the Physician stating

that complainant continued to have a profound neurological deficit in

his left foot and leg and mechanical back pain. The letter also listed

the same restrictions as in the prior medical notes.

In December 1998, due to a reduction in force, complainant was reassigned

to a vacant position as a Transportation Assistant within the Personnel

Support Activity in Jacksonville, Florida. The position was designed to

accommodate his restrictions as listed by the Physician. The Supervisory

Program Analyst stated that an ergonomic evaluation was performed on

the position by the Safety Officer prior to complainant reporting for

the position. The evaluation found that the position met complainant's

requirements.

On February 12, 1999, complainant reported to his reassignment position.

At his duty location, he found his work station on the second floor

in a building without an elevator, no access ramp into the building,

and restrooms on the first floor. Complainant determined that he would

have difficulty climbing the stairs due to his condition. The record

indicates that complainant informed his Second Line Supervisor that

he was having trouble climbing stairs because of his drop foot and

showed his brace on his left leg. The Second Line Supervisor took

complainant to discuss the matter with the Supervisory Program Analyst.

Complainant informed the Supervisory Program Analyst of the difficulties

entering the building and climbing the stairs. He also indicated that

it was due to his drop foot and that he wore a brace on his left leg.

The Supervisory Program Analyst indicated that, prior to his request,

she was not aware that complainant had limitations which would make

it difficult for him to enter the building and to climb the stairs.

She requested complainant produce medical documentation in support of

his request.

Until complainant produced such documentation, he continued to report

to the second floor work site in a building without a ramp, without an

elevator, and restrooms on the first floor. He averred that he had to

climb the stairs ten to twelve times a day during his four duty hours

in order to use the restrooms. As a result of climbing the stairs,

complainant exacerbated his condition. Four weeks after informing the

Supervisory Program Analyst of his request, complainant provided medical

documentation from the Physician which explicitly stated that he could

not climb step. After the medical documentation was provided, he was

detailed to another building while his work site was changed.<1>

Based on the request to provide additional medical documentation,

complainant sought EEO counseling and subsequently filed a formal

complaint on April 19, 1999. He alleged that he was discriminated against

on the bases of disability (profound neurological deficit in left foot

and leg) and reprisal for prior EEO activity<2> when on February 12,

1999, he was offered a position on the second floor. At the conclusion

of the investigation, complainant was informed of his right to request a

hearing before an EEOC Administrative Judge or alternatively, to receive

a final decision by the agency. Complainant requested that the agency

issue a final decision. In its FAD, the agency concluded that complainant

was not discriminated as alleged.

On appeal, complainant contends that his medical limitations that were

known to the agency made it patently obvious that he would experience

severe difficulty and physical discomfort entering the building and

climbing stairs to go to his second floor work location. Therefore,

the agency should have provided him with a reasonable accommodation

rather than requesting medical documentation. The agency requests that

we affirm its FAD.

ANALYSIS AND FINDINGS

Reasonable Accommodation

Complainant claims on his formal complaint that he was discriminated

against when he was offered the reassignment position. Upon review of

complainant's affidavit and his argument on appeal, however, his main

contention appears to be that his request for a reasonable accommodation

was unduly delayed by the agency's request for medical documentation.

Under the Commission's regulations, an agency is required to make

reasonable accommodation to the known physical and mental limitations

of an otherwise qualified individual with a disability unless the

agency can show that accommodation would cause an undue hardship.

29 C.F.R. � 1630.9.

We must first determine whether complainant is an otherwise qualified

individual with a disability. Upon review, we find that complainant is

covered under the Rehabilitation Act. The record indicates that due to an

accident on April 4, 1997, complainant has a recurrent herniated disc.

Also connected to his back, complainant has a profound neurological

deficit in his left foot and leg. Due to these conditions, complainant

is restricted from lifting over ten pounds, sitting for more than thirty

minutes without a five minute break, standing for more than fifteen

minutes without a five minute break, and repetitive bending, squatting,

kneeling, and crawling. Based on the restriction of lifting no more

than ten pounds, we find that complainant's condition substantially

limits him in the major life activity of lifting.

Complainant also must show that he is a "qualified" individual with

a disability within the meaning of 29 C.F.R. � 1630.2(m). The term

�qualified individual with a disability,� with respect to employment,

is defined as a disabled person who, with or without a reasonable

accommodation, can perform the essential functions of the position held

or desired. 29 C.F.R. � 1630.2(m). The record shows that the position to

which complainant was reassigned was otherwise within his limitations.

There is no indication from either party that complainant could not

perform the essential functions of the position he held. Therefore,

upon review, we find that complainant is qualified.

The Commission notes that the agency is obligated to provide reasonable

accommodation for any limitations resulting from a disability.

Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under

the Americans With Disabilities Act (Enforcement Guidance), EEOC Notice

No. 915.002 at Question 38 (March 1, 1999). The limitation which is the

basis for the accommodation request need not itself be substantially

limiting. As long as the limitation is a consequence of a disability

covered under the Rehabilitation Act, the request must be granted

absent undue hardship. Id. In the case at hand, the record clearly

demonstrates that complainant's climbing restriction is a consequence

of his disability. Therefore, unless undue hardship can be shown,

we find that the agency is obligated to provide complainant with a

reasonable accommodation.

We now turn to the issue of whether the agency properly requested medical

documentation in response to complainant's request for a reasonable

accommodation. Complainant claims that the agency should have been

aware of his need for the accommodation based on his condition, his

restrictions listed above, and his leg brace. Complainant also argues

that the agency was on notice of his condition based on the Physician's

medical notes from 1997 through 1998 providing information as to his

"complete foot drop in the left foot" which resulted in weakness and

numbness in his left leg.

Upon review, we find that the agency should not have required complainant

to provide additional medical documentation regarding his climbing

limitation. The Commission has stated that there are situations when

an employer cannot ask for documentation in response to a request for

reasonable accommodation. It is when: (1) both the disability and the

need for the reasonable accommodation are obvious; or (2) the individual

has already provided the employer sufficient information to substantiate

that he/she has a disability and needs the reasonable accommodation

requested. See Enforcement Guidance at Question 8. In the case at hand,

the record clearly shows that complainant has clearly provided sufficient

information to substantiate his disability. Furthermore, based on the

limitations indicated on the medical documentation and his leg brace,

we find that complainant also has provided sufficient information to

substantiate the need for the accommodation. Accordingly, we conclude

that the Supervisory Program Analyst erred when she requested additional

medical documentation. As a result of the Supervisory Program Analyst's

error, complainant continued to work in his second floor work site for one

month exacerbating his condition. Therefore, the Commission concludes

that complainant's reasonable accommodation was unduly delayed because

of the agency's improper request for medical documentation.

Reprisal

Complainant also alleged that, based on his prior EEO activity, his

request for reasonable accommodation was unduly delayed. After a review

of the record in its entirety, including consideration of all statements

submitted on appeal, it is the decision of the Commission to affirm the

agency's final decision as to complainant's claim of unlawful retaliation.

We do so because the preponderance of the evidence of record does not

establish that discrimination based on his prior EEO activity occurred.

CONCLUSION

Therefore, after a careful review of the record, we affirm the FAD

finding of no retaliation, however, we reverse the FAD finding of no

disability-based discrimination.

ORDER (C0900)

The agency is ordered to take the following remedial action:

Within fifteen (15) calendar days of the date this decision becomes

final, the agency shall give complainant a notice of his right to submit

objective evidence (pursuant to the guidance given in Carle v. Department

of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support

of his claim for compensatory damages within forty-five (45) calendar

days of the date complainant receives the agency's notice. The agency

shall complete the investigation on the claim for compensatory damages

within forty-five (45) calendar days of the date the agency receives

complainant's claim for compensatory damages. Thereafter, the agency

shall process the claim in accordance with 29 C.F.R. � 1614.108(f).

The agency should provide training as to its obligations under the

Rehabilitation Act to management officials, including those who handled

the instant situation.

The agency shall consider taking disciplinary action against

the management official(s) identified as being responsible for the

discrimination perpetrated against complainant. 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 shall complete all of the above actions within ninety (90)

calendar days from the date on which the decision becomes final.

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 supporting documentation verifying

that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Jacksonville, Florida 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

September 13, 2002

__________________

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission ("EEOC") dated _____________________

which found that a violation of Section 501 of the Rehabilitation Act

of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,

has occurred.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,

promotion, compensation, or other terms, conditions or privileges of

employment.

The Department of the Navy, Jacksonville, Florida, supports and will

comply with such Federal law and will not take action against individuals

because they have exercised their rights under law.

The Department of the Navy, Jacksonville, Florida, has been found to

have discriminated against an employee based upon his disability. As a

result, the agency has been ordered by the EEOC to provide training in

the requirements of the Rehabilitation Act to the responsible management

official(s), to consider discipline of management official(s), and to

determine entitlement to compensatory damages for the affected employee.

The Department of the Navy, Jacksonville, Florida, will ensure that

officials responsible for personnel decisions and terms and conditions

of employment will abide by the requirements of all Federal equal

employment opportunity laws and will not retaliate against employees

who file EEO complaints.

The Department of the Navy, Jacksonville, Florida, will not in any

manner restrain, interfere, coerce, or retaliate against any individual

who exercises his or her right to oppose practices made unlawful by,

or who participates in proceedings pursuant to, Federal EEO law.

______________________________

Date Posted: ____________________

Posting Expires: ________________

29 C.F.R. Part 1614

1The record indicates that the agency made complainant's work location

accessible for him by installing a ramp entry to the building, modifying

the restroom for him, and moving his work area to the first floor.

2The record indicates that complainant filed a previous EEO complaint,

however there is no information as to which statute he alleged was

violated.