0320140008
12-05-2014
Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Petitioner,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Petition No. 0320140008
MSPB No. PH-0353-12-0383-I-1
DECISION
On October 1, 2013, Petitioner filed a timely petition1 with the Equal Employment Opportunity Commission asking for review of a final decision issued by the Merit Systems Protection Board (MSPB) concerning her claim of 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 the events at issue, Petitioner was employed as a Letter Carrier at the Agency's Absecon Post Office in New Jersey. Petitioner had been absent from work since February 2011 due to a medical condition. According to a July 27, 2011 Duty Status Report completed by Petitioner's psychologist (P1), Petitioner had severe depression.
On December 9, 2011, Petitioner requested to return to duty and submitted to the Postmaster (PM) a letter from P1. P1's December 9, 2011 letter stated the following:
[Petitioner] has been a patient under my care for a psychological condition related to work circumstances. At this time, as of this date, it is my opinion that she is ready to return to work with no restrictions or limitations, and may fully resume all prior work responsibilities. In my opinion, she presents no risk of harm to herself or others in any way. [Petitioner] will continue in treatment in my office, and I would ask that any reasonable scheduling accommodations be made accordingly. Additionally, I would ask that reasonable accommodations also be provided in accordance with policies governing fair treatment of disabled Americans that would allow [Petitioner] to avoid potentially confrontational situations.
On December 12, 2011, PM forwarded the letter to the Manager of Labor Relations (MLR) for review. On December 14, 2011, MLR forwarded the letter to the Occupational Health Nurse Administrator (OHNA) for review. On December 30, 2011, the District Reasonable Accommodation Committee (DRAC) scheduled a meeting with Petitioner to discuss her request for accommodation. The DRAC was comprised of OHNA, the Labor Relations Specialist (LRS), and PM.
On January 12, 2012, the DRAC met with Petitioner and she indicated that she required accommodation to attend medical appointments and to recover from possible panic attacks. Later that day, the DRAC asked Petitioner to provide additional documentation about her diagnosis, her medical restrictions, the duration of her medical restrictions, and how the medical condition impacted her. On January 25, 2012, Petitioner submitted a second letter from P1. P1's January 20, 2012 letter repeated the information contained in the previous letter but also recommended that the Agency allow Petitioner to attend medical appointments and take 5-10 minute breaks from work to regain her composure after experiencing an acute anxiety or panic attack.
On February 10, 2012, the Senior Area Medical Director (SAMD) requested further clarification from P1 about the expected frequency of Petitioner's attacks, how long the accommodation would be required, and whether Petitioner was taking any medication that would affect her ability to drive a postal vehicle. On February 16, 2012, Petitioner submitted a third letter from P1. P1's February 15, 2012 letter repeated the information contained in the previous letter but also explained that the expected frequency of Petitioner's attacks was one to two times a week, that the accommodation would be required for up to a year after Petitioner's return to work, and that Petitioner was not taking any medication that would affect her ability to drive a postal vehicle.
Later that day, after receiving P1's third letter, SAMD stated in an email to OHNA: "I have no further questions for [P1] at this time. [Petitioner] has everything in order to return to duty." On March 2, 2012, LRS issued a letter to Petitioner stating that the DRAC would grant the two requested accommodations and directing Petitioner to contact PM about returning to work. On March 7, 2012, Petitioner returned to work.
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency's decision not to return her to work effective December 9, 2011 violated her restoration rights. Petitioner raised an affirmative defense of disability discrimination (failure to accommodate).
On September 27, 2012, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency violated Petitioner's restoration rights but finding no denial of reasonable accommodation.2 Regarding restoration, the MSPB AJ found that the Agency acted arbitrarily and capriciously in delaying Petitioner's restoration for approximately two weeks (February 17, 2012 through March 2, 2012) after receiving acceptable medical documentation that she was able to return to work.3 Regarding reasonable accommodation, the MSPB AJ found that Petitioner did not prove that the Agency purposely delayed rendering a decision on her request to return to work with accommodation. Moreover, the MSPB AJ found that, once Petitioner articulated her requested accommodation and provided medical documentation in support of her request, her request was granted. Finally, the MSPB AJ found that the 15-day delay between SAMD's February 16, 2012 approval of the request for accommodation and LRS's issuance of the March 2, 2012 return to work letter did not rise to the level of disability discrimination.
Petitioner filed a petition for review with the full Board and the Agency filed a cross petition for review. On September 13, 2013, the Board denied both petitions. Petitioner then filed the instant petition.
ARGUMENTS IN PETITION
In her petition, Petitioner argued that the MSPB's favorable ruling on her restoration claim automatically meant that the Agency denied her return to work in violation of the Rehabilitation Act. In addition, Petitioner argued that the Agency failed to engage in the interactive process because the DRAC did not communicate much with her despite her daily attempts to contact them about her return to work. Further, Petitioner argued that the Agency's requests for additional documentation: (a) were unnecessary because P1's December 9, 2011 letter stated that she could return to work with no restrictions; and (b) were stalling tactics to keep her from returning to work.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination4 constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
Reasonable Accommodation
As an initial matter, we assume, without so finding, that Petitioner is an individual with a disability under the Rehabilitation Act. An agency is required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability, unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. See 29 C.F.R. � 1630.9.
After receiving a request for reasonable accommodation, the agency and the employee should engage in an informal, interactive process to clarify what the employee needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 5 (as revised Oct. 17, 2002). When the disability and/or the need for accommodation is not obvious, the agency may ask the employee for reasonable documentation about her disability and functional limitations. See id. at Question 6. Reasonable documentation means that the agency may require only the documentation that is needed to establish that the employee has a Rehabilitation Act disability, and that the disability necessitates a reasonable accommodation. See id. The agency should respond expeditiously to a request for reasonable accommodation; unnecessary delays can result in a violation of the Rehabilitation Act. See id. at Question 10. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors would include: (1) the reason(s) for the delay; (2) the length of the delay; (3) how much the employee and the agency each contributed to the delay; (4) what the agency was doing during the delay; and (5) whether the required accommodation was simple or complex to provide. See id. at n. 38.
Upon review of the record, we agree with the MSPB's finding that Petitioner was not denied a reasonable accommodation.
First, the record reflects that the Agency engaged in the interactive process to clarify what Petitioner needed so it could make an informed decision on her request. Specifically, after the Agency received P1's December 9, 2011 letter, it reviewed the letter, scheduled a meeting with Petitioner, met with Petitioner to discuss her request, and asked Petitioner for additional documentation pertinent to her request.
Second, we find that the Agency was allowed to ask Petitioner for additional documentation from P1 about her anxiety/panic attacks and the functional limitations resulting from those attacks. Although P1's December 9, 2011 letter stated that Petitioner was "ready to return to work with no restrictions," it also made vague references to Petitioner's medical condition ("a psychological condition") and need for accommodation ("reasonable scheduling accommodations" and accommodations "that would allow [her] to avoid potentially confrontational situations"). As Petitioner's anxiety/panic attacks and her need for accommodation for those attacks were not obvious, the Agency properly asked for additional information concerning her diagnosis, her medical restrictions and their duration, how the attacks and any medication she took for those attacks impacted her, and the expected frequency of those attacks.
Third, we find that the Agency did not unnecessarily delay in responding to Petitioner's request for accommodation such that it resulted in a violation of the Rehabilitation Act. Approximately 12 weeks elapsed between Petitioner's December 9, 2011 request and the Agency's March 2, 2012 letter granting the accommodation and allowing her to return to work. However, during much of the time, the Agency was trying to clarify what accommodation Petitioner needed by meeting with Petitioner, requesting additional documentation from Petitioner, and reviewing P1's letters. In addition, we note that Petitioner contributed to some of the delay because it took her approximately two-and-a-half weeks to submit the additional documentation. Further, we note that approximately ten weeks had elapsed before Petitioner finally provided sufficient information to substantiate her disability and need for accommodation. Finally, we agree with the MSPB that, in this case, the approximately two-week gap between the Agency's approval of Petitioner's request and the Agency's issuance of the letter granting Petitioner's request (and returning her to work) did not amount to discrimination. According to Handbook EL-307, Section 24 (Time Frames for Processing Requests for Reasonable Accommodation), the Agency should make its decision on the request within 20 business days from the date it receives the completed medical documentation. Here, the Agency informed Petitioner that it was granting her request within approximately 11 business days from the date it received P1's third letter.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no disability discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
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, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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
_12/5/14_________________
Date
1 In addition to the statement filed concurrently with her October 1, 2013 petition, Petitioner filed a statement on January 8, 2014. A petitioner is required to file any supporting statement concurrently with the petition. See 29 C.F.R. � 1614.304(b). Accordingly, we decline to consider Petitioner's January 8, 2014 statement as it was untimely filed.
2 The MSPB AJ also found that PM did not violate the Rehabilitation Act when he forwarded P1's December 9, 2011 letter to MLR. Specifically, the MSPB AJ determined that PM thought MLR was a member of the DRAC whereas, in actuality, MLR had designated a subordinate (LRS) to serve on the DRAC. The Commission has the discretion to focus only on the issues specifically raised on appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, � IV.A (Nov. 9, 1999). As Petitioner did not specifically challenge the MSPB AJ's finding on this issue, we exercise our discretion not to address it in our decision.
3 The MSPB AJ ordered the Agency to restore Petitioner effective February 17, 2012 through March 2, 2012 and to pay her back pay.
4 The Agency, in its opposition to Petitioner's petition, challenged the MSPB's finding that it violated her restoration rights. We emphasize that the Commission's jurisdiction is limited to reviewing decisions of the MSPB "with respect to the allegation of discrimination." Accordingly, we will not review the MSPB's finding regarding Petitioner's restoration rights.
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0320140008
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320140008