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.