0320140033
02-04-2015
Petitioner, v. Penny Pritzker, Secretary, Department of Commerce (International Trade Administration), Agency.
Petitioner,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(International Trade Administration),
Agency.
Petition No. 0320140033
MSPB No. NY-0432-13-0115-I-1
DECISION
On March 18, 2014, Petitioner filed a petition with the Equal Employment Opportunity Commission, asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his 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
From a young age, Petitioner was diagnosed with Obsessive Compulsive Disorder (OCD), a disorder that caused him to engage in time-consuming, compulsive, repetitious behaviors and rituals. As an adult, Petitioner underwent various treatments, such as cognitive behavioral therapy and medications, to manage his symptoms and effectively function in the workplace.
For over 20 years, Petitioner worked in various jobs at the U.S. Department of Commerce. In 2003, he began working as an International Trade Specialist for the International Trade Administration at the Northern New Jersey U.S. Export Assistance Center in Newark, NJ. International Trade Specialists plan and coordinate trade development programs and events to promote U.S. exports, develop and disseminate trade information to U.S. businesses, and counsel U.S. businesses on targeting foreign markets, competiveness, trade barriers, and other issues. For the next five years, Petitioner performed satisfactorily in this job.
Then in December 2008 and March 2010, he was involved in two work-related car accidents, in which he significantly injured his neck, shoulders, and spine, and suffered a concussion and hearing loss. The extent and seriousness of his injuries caused Petitioner to be out of the office on workers' compensation for a substantial time. After the second car accident, Petitioner returned to work part-time in July 2010, and full-time on November 2, 2010.
The accidents and injuries exacerbated Petitioner's previously stable OCD symptoms, which began manifesting themselves in various ways. According to Petitioner's treating psychiatrist, the OCD primarily affected his ability to read and process information. The OCD shortened his reading concentration (resulting in frequent breaks), slowed the speed at which he processed information, and broke the continuity of comprehension of reading material. As a result, Petitioner often had to backtrack on his reading and break sequential reading comprehension.
The psychiatrist added that the side effects of Petitioner's medications could affect his ability to focus: the medications could cause drowsiness and lead to fatigue at work. Occasionally, Petitioner could have obsessive compulsive thoughts, which slowed his ability to process information, and made it harder for him to retain and follow instructions.
Petitioner elaborated that he would sometimes focus on a detail rather than the larger task or responsibility. When given detailed instructions that did not appear to be clear to him, Petitioner would concentrate on the wording of the document, and reread the document. He would spend significant time on routine tasks, like preparing a fax cover sheet, because of an OCD compulsion to ensure that the "writing was perfect, the lines were perfect, rather than moving forward to getting the content out in the fax machine." Petitioner's testimony, Hearing transcript, at 651.
The exacerbation of Petitioner's OCD symptoms negatively affected his work performance in 2009 and 2010. In 2009, Petitioner "barely passed the critical elements and performance evaluation . . . ." Id., at 649. Then in 2010, he was counseled for not reaching out to enough U.S. businesses ("clients") and for making errors on administrative assignments.
Petitioner's First Request for Reasonable Accommodations
On February 22, 2011, Petitioner requested reasonable accommodations for his OCD and anxiety. He submitted to the Agency a letter from his treating psychiatrist, who recommended the following accommodations:
1. 100% more additional time to complete work related tasks, duties and responsibilities in the event of unforeseen flare-up, or onset of debilitating symptoms of the disorder, including, but not limited to side effects from medications taken daily to manage the disorder.
2. To accommodate unforeseen circumstances such as a debilitating flare up of symptoms, side effects, and others provide for telework twice per week and unforeseen telework from home two days per week, with option for late arrival, early departure and worst case scenario involving debilitating flare up, or onset of symptoms.
3. Reduce driving time due to drowsiness from medications. Limited selection of driving tasks and time of day related to medication effect.
4. Reducing stress in the work environment by clear communication of deadlines and expectations. Taking symptoms into account when setting the work load, and the tone of the work environment. Sensitivity to feedback from [the Petitioner] when he is experiencing excessive symptoms or stress.
Agency's Response to First Request for Reasonable Accommodations
On March 28, 2011, Petitioner's acting supervisor denied in part, and granted in part, Petitioner's reasonable accommodation requests. For the first request of "100% more additional time" to complete tasks whenever OCD symptoms flared-up unexpectedly, she denied the request because it was tantamount to eliminating essential functions or lowering performance standards. But as an alternative, she eliminated the marginal functions of Petitioner's job (fire warden, inventory control, training new trade specialists) to give him more time to complete essential functions.
For Petitioner's second request, the acting supervisor granted Petitioner the ability to telework two days each week, with an additional two days as needed when he experienced severe symptoms. But she attached several reporting conditions that he had to fulfill when requesting telework (e.g., emailing her to "sign in" at the beginning of his tour of duty) and warned that "failure to follow my instructions may serve as the basis for disciplinary action, up to and including removal from the Federal service."
Third, to accommodate those times when Petitioner's medications make him too drowsy to safely drive himself to meet clients or attend external trade events, the acting supervisor allowed Petitioner to meet with clients at his office, or to ride taxis or public transportation and be reimbursed for transportation expenses.
As for Petitioner's fourth reasonable accommodation request, the acting supervisor promised to "communicate deadlines and expectations" to him in writing. However, she did not address his request that she take his OCD symptoms into account when setting the "tone of the work environment" or in how she gave him feedback.
Petitioner's Second Request for Reasonable Accommodations
Less than a month later, on April 21, 2011, Petitioner's treating psychiatrist wrote to the Agency about how the work environment was exacerbating Petitioner's OCD symptoms and anxiety:
A factor that has largely contributed to [an exacerbation of Petitioner's symptoms] is a work environment that undermines his ability to do his work; deprives him from a reward system that recognizes and rewards good work; and severely deprives him from reaching, or maintaining, his full potential by building on, or going out of its way to find, negatives, rather than building on the positives.
Petitioner's treating psychiatrist described the work environment created by management as being "heavy-handed, arbitrary and capricious in its accusations and assumptions, and, ultimately, nonproductive, if not unacceptably nonprofessional and destructive." As an example, the treating psychiatrist highlighted a recent email by the acting supervisor:
This is one more example of your failure to following instructions to keep the Office calendar up to date. I looked at the office calendar immediately before I called you. There was no entry for the OOV. Your failure to keep the office calendar up to date has an impact on your supervisor and colleagues. You are instructed again to keep the Office calendar up to date on a daily basis.
The treating psychiatrist noted that this was not an isolated incident limited to only the acting supervisor: "Although the matter at hand may be different, and/or the supervisor may be different, the interaction has played itself out almost time and again verbatim. . . . It is this sort of demeaning, put-down, accusatory behavior that . . . when repeated time and again with the frequency to which [Petitioner] has been subjected to over the last six years that he has been my patient, it becomes clear harassment and abuse." "Working in this hostile environment is contrary to the psychological setting that we attempt to build through therapy."
The treating psychiatrist reported that Petitioner was continuing to take psychotropic medication to mitigate his anxiety and diminish or avert the onset of obsessive compulsive thoughts and behavior that arose from management's potentially "threatening, hostile, capricious work environment." Moreover, Petitioner continued to need downtime to "regain his footing following the onset or flare-up of symptoms brought on by his environment."
The treating psychiatrist requested, as a reasonable accommodation, that "these issues be addressed, and/or resolved . . . ."
Management did not immediately address this second accommodation request. Rather, 5 days after the second accommodation request, Petitioner's permanent supervisor, the facility's Director, determined that Petitioner's work performance was unacceptable in all four critical job elements. A few weeks later, on May 12, 2011, he placed Petitioner on a 60-day Performance Improvement Plan (PIP).
Performance Improvement Plan
In a 10-page Performance Improvement Plan, Petitioner's supervisor outlined various metrics and procedures for Petitioner to improve in the critical elements of:
* Customer service: timely responding to internal and external customers;
* Export successes and client results: increasing the number of markets U.S. exporters enter and helping U.S. businesses increase their exports;
* Outreach and partnership: conducting collaborative outreach to educate U.S. businesses on the benefits of exporting and increasing the Agency's "client base";
* Resource management: effectively managing administrative tasks.
The Performance Improvement Plan was detailed and contained numerous numerical and procedural requirements. For example, under the critical element of customer service, the supervisor required Petitioner to respond to clients' messages within 16 business hours and forward all of their voice messages and emails to the supervisor within 16 business hours. The supervisor warned Petitioner in the PIP:
If you fail to provide a response to any client message, you will fail this requirement. If you provide a response to a client message but fail to provide it within the above timeframe on more than two occasions, you will fail this requirement. . . . . If you fail to provide me with a copy of the written response you provide to a client inquiry in more than two instances, you will fail this requirement. If you provide me with a copy of the written response but fail to do so within 16 business hours of delivery to the client in more than five instances, you will fail this requirement.
Agency's Response to Second Request for Reasonable Accommodations
On June 7, 2011, Petitioner's supervisor responded to Petitioner's April 21, 2011 reasonable accommodation request. He determined that the Agency had already properly addressed his request to reduce environmental work stressors by (1) communicating deadlines and expectations in writing, (2) eliminating marginal job functions, and (3) allowing him to telework for up to 4 days per week, as needed should he experience severe symptoms.
Petitioner's Third Request for Reasonable Accommodations
A few days later, Petitioner submitted a letter dated June 7, 2011 from an Audiology Senior Specialist, who reported that Petitioner was suffering from hearing loss and needed time to be fitted with, and adjust to, hearing prosthetics. Otherwise, without properly programmed hearing prosthetics, Petitioner would have difficulty hearing and interacting with individuals, clients, coworkers both in quiet listening conditions and louder conditions, like conference auditoriums and eating establishments. The Audiology Senior Specialist requested that Petitioner be given 2 additional telework days to adjust and properly configure his hearing prosthetics.
Agency's Response to Third Request for Reasonable Accommodations
On June 30, 2011, Petitioner's supervisor responded to this third request for accommodation. The supervisor noted that his current accommodations allow him to telework up to 4 days per week, therefore he did not need any additional telework days for him to properly program his hearing prosthetics.
To accommodate Petitioner's hearing difficulties, the supervisor offered to schedule Petitioner's meetings in a quiet place in the office, and to accompany him during external meetings.
Removal
On November 21, 2011, the former Director of the Northern New Jersey Export Assistance Center proposed to remove Petitioner.
On February 21, 2012, the Regional Director of the Northeast Network, U.S. & Foreign Commercial Service, International Trade Administration, U.S. Department of Commerce issued a decision to remove Petitioner for unacceptable performance, which included:
* 6 times in which he failed to respond to clients within 16 business hours;
* failure to have the minimum number of documented "export successes," counseling sessions, "highlights," and attempts to get new "clients;"
* failure to submit an adequate budget and marketing campaign for a trade event for local exporters;
* 11 times in which he made typographical or substantive errors in his entries in the office calendar and time and attendance system.
Merit Systems Protection Board
Petitioner filed a mixed case appeal with the Merit Systems Protection Board (MSPB), alleging that the Agency discriminated against him on the bases of disability (Obsessive Compulsive Disorder, anxiety) when it failed to provide him with reasonable accommodations, which resulted in his removal on February 21, 2012. In addition, Petitioner alleged that the Agency removed him as retaliation for requesting accommodations for his disability.
A hearing was held, and an MSPB Administrative Judge (AJ) issued an initial decision that upheld the removal. The AJ first found that the Agency proved its charge of unacceptable performance in all four critical elements.
Next, the AJ determined that Petitioner was an individual with a disability, whose medical conditions, including his OCD and hearing loss, substantially limited him in the major life activities of concentrating, thinking, communicating with others, hearing, and working.
But then the AJ found that Petitioner was not a "qualified" individual with a disability, because he could not perform the essential functions of his position with accommodation during the PIP. The AJ found that Petitioner was not able to perform the essential functions of the position during the PIP, even though he had been given numerous accommodations, including the elimination of marginal functions, teleworking up to 4 days per week, permission to meet with clients in the office rather than drive out to them, scheduling office meetings in quiet spaces, and having supervisors communicate deadlines and expectations in writing. Moreover, the AJ noted that Petitioner testified at the hearing that he would frequently "freeze" during the PIP period and become unable to function at work. Overall, the AJ found that Petitioner could not perform the essential functions of the position with accommodation, and therefore was not "qualified" for his current position of International Trade Specialist.1
The AJ further determined that Petitioner failed to show that he was entitled to be reassigned to another position, as an accommodation of last resort. The AJ found that the Agency was under the belief that it had reasonably accommodated Petitioner's medical condition based on the fact that Petitioner had not requested reconsideration or voiced any dissatisfaction with the accommodations provided. Therefore, the AJ found that the Agency had no duty to reassign Petitioner based on the circumstances of this case. Moreover, the AJ found that Petitioner did not present any evidence that there was a vacant position available that he could have performed. The AJ referenced management testimony that all International Trade Specialists perform the same functions nationwide. The AJ concluded that Petitioner failed to prove that the Agency failed to reasonably accommodate his disability.2
The AJ then addressed Petitioner's argument that the Agency violated its policies with regard to reasonable accommodation and reassignment. The AJ found the Agency's policies tracked what is required under the law and found no violation by the Agency with regard to its obligations to accommodation or reassign Petitioner.
Finally, the AJ found that Petitioner failed to show that the Agency retaliated against him for requesting reasonable accommodations by removing him. While the AJ found that the proposing official and deciding official were aware of Petitioner's requests for accommodation, the AJ found no evidence indicating that the issuance of the PIP, proposal to remove, or decision to remove, were due to Petitioner's requests for accommodation. Rather, the AJ found that the PIP, proposal to remove, and decision to remove, were issued as a result of Petitioner's continuing poor performance.
Petitioner then filed a petition for the Commission to review the AJ's decision.
CONTENTIONS ON PETITION FOR REVIEW
Petitioner contends that the AJ erred in finding no discrimination on the basis of disability on two grounds. First, he argues that the Agency official who ultimately decided to remove Petitioner (the Regional Director of the Northeast Network) failed to engage in the interactive process with Petitioner, thereby violating the Agency's own reasonable accommodation policies and procedures. The Agency's reasonable accommodation policy states:
Once a reasonable accommodation request is received, parties shall begin the interactive process to determine what, if any, accommodation should be provided. The deciding official shall meet with the requestor promptly after receipt of the request to explain the process and, if necessary, obtain additional information . . . If an employee requests an accommodation that is not effective, would pose an undue hardship, or is otherwise not legally required (e.g., removing an essential job function), the deciding official should continue the interactive process and explore alternatives until either a reasonable accommodation is found, or the employer determines that no reasonable accommodation exists.
Petitioner argues that, contrary to the Agency's reasonable accommodation policy, the ultimate "deciding official" in the removal action (the Regional Director of the Northeast Network) did not inquire about Petitioner's medical condition and the adequacy of his present accommodations before removing him. Rather, Petitioner's immediate supervisors simply issued decisions to grant or deny his reasonable accommodation requests without first meeting with him. And then when the accommodations proved to be insufficient, neither the ultimate deciding official nor Petitioner's immediate supervisors engaged in any interactive process to identify alternative effective accommodations.
Second, Petitioner maintains that the Agency failed to consider reassigning or demoting him, and instead chose to remove him. At the hearing, Petitioner testified that he would have accepted a reassignment anywhere in the world and would have also accepted a demotion.3
ANALYSIS AND FINDINGS
Standard of Review
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 discrimination 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
The Rehabilitation Act requires federal agencies to provide reasonable accommodations to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. Reasonable accommodations remove workplace barriers for individuals with disabilities. They include modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position.
Individual with a Disability
For purposes of our analysis, we will assume, without deciding, that Petitioner is an individual with a disability, whose OCD symptoms, anxiety, and hearing loss substantially limit him in the major life activities of concentrating, thinking, communicating with others, and hearing.
We therefore move on to determine whether Petitioner is a "qualified" individual with a disability, who can perform the essential functions of an International Trade Specialist.
Qualified Individual with a Disability
A qualified individual with a disability is an "individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment positions such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. �1630.2(m).
Upon review, we determine that the AJ's finding, Petitioner was not a qualified individual with a disability who was unable to perform the essential functions of an International Trade Specialist with reasonable accommodation, constitutes a correct interpretation of the applicable laws and regulations, and is supported by the evidence in the record as a whole.
According to the position description, an International Trade Specialist's major duties are: (1) planning and coordinating trade development programs and events to promote U.S. exports; (2) analyzing and recommending positions on complex trade issues; (3) developing and disseminating trade information to U.S. businesses or associations; (4) independently providing export counseling to clients with difficult problems of market targeting, competitiveness, and trade barriers.
Here, the Agency modified or adjusted Petitioner's work environment in several ways to enable him to perform the essential functions of the position:
* The Agency eliminated the marginal functions of his job to give him more time to perform his essential duties;
* The Agency permitted him to telework up to 4 days per week whenever his OCD symptoms flared-up unexpectedly;
* The Agency no longer required him to drive himself to meet with clients because of the possible drowsy side effects of his medications; rather he could meet with clients in a quiet office space at work.
But despite these modifications and adjustments to his work environment, Petitioner's performance was still unsatisfactory.
Petitioner maintains that the reason why his performance continued to be unsatisfactory was because the Agency's accommodations were inadequate and ineffective.4 Had the Agency engaged with him further in the interactive process to determine an appropriate accommodation, Petitioner argues he would have been capable of performing the essential functions of the position.
We are not persuaded by Petitioner's argument. While an ineffective reasonable accommodation could be the cause of a performance problem by an individual with a disability, an employer need not automatically assume that an "unsatisfactory rating means that a reasonable accommodation is not working." See The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities, Question 7, available at http://www.eeoc.gov/facts/performance-conduct.html. Here, we find that Petitioner has not adequately explained how the existing accommodations were not assisting him in improving his performance as intended, what changes would have made the accommodations effective, what additional accommodations were needed, or whether the original accommodations should have been withdrawn and substituted with others. Therefore, we agree with the MSPB AJ and find that Petitioner has not demonstrated that he could perform the essential functions of an International Trade Specialist with reasonable accommodation.
a. Reassignment
Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his current position, or (2) all other reasonable accommodations would impose an undue hardship. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002).
Here, we find that Petitioner failed to show the requisite first element, that there were no effective accommodations that would enable him to perform the essential functions of his current position of International Trade Specialist. To the contrary, the Agency's accommodations for Petitioner (removing marginal job functions, allowing him to telework 4 days per week in the event of unexpected flare-ups, holding client meetings at the office in quiet rooms) appeared to enable him to perform the essential functions of an International Trade Specialist. And as stated above, Petitioner provided no persuasive testimony explaining why those existing accommodations were ineffective, that is, why they did not enable him to perform the essential functions as intended.
Therefore, we conclude that the MSPB AJ did not err in finding that Petitioner was not a qualified individual with a disability, because he was unable to perform the essential functions of the position of International Trade Specialist, with accommodations.
Interactive Process
Finally, Petitioner appears to argue that management's failure to personally enter in the interactive process with Petitioner subjected the Agency to liability for violating the Rehabilitation Act. In particular, Petitioner suggests that the Agency official who ultimately decided to remove Petitioner had a personal obligation to enter into the interactive process with Petitioner before removing him.
We find this argument to be unpersuasive. As a factual matter, the evidence is clear that Petitioner entered into the interactive process with the Agency's Reasonable Accommodation Coordinator, a representative from the operation unit human resources office who acts as an impartial advisor and has specific responsibilities as part of the reasonable accommodation process. Petitioner submitted medical documentation and his accommodation requests to the Reasonable Accommodation Coordinator, who processed them and conveyed his requests to Petitioner's immediate supervisors, who then issued decisions on whether to grant or deny the requests.
Furthermore, the Agency's Reasonable Accommodation policy defines the "deciding official" as "a supervisor, manager, principal or servicing human resource manager who has the authority to determine whether a requested accommodation will be provided." The Agency's Reasonable Accommodation policy specifies that "requests for accommodation from employees will be decided by the immediate supervisor whenever possible." Therefore, under the Agency's policy, we find that the "deciding official" with respect to Petitioner's accommodation requests were Petitioner's immediate supervisors, not the official who ultimately decided to remove Petitioner.
Where Petitioner's immediate supervisors may have fallen short in adhering to the Agency's Reasonable Accommodation policy was in their lack of personal participation in the interactive process. The Agency's Reasonable Accommodation policy states:
The deciding official shall meet with the requestor promptly after receipt of the request to explain the process and, if necessary, obtain additional information. It is equally incumbent on each participant in the reasonable accommodation process, requestors and deciding officials alike, to actively engage in the interactive process in order to attain results.
Ongoing communication is particularly important where the specific limitation, problem, or deciding official barrier is unclear; an effective accommodation is not obvious; or the parties are considering different possible reasonable accommodations.
Here, communication was decidedly one way, in which the immediate supervisors required Petitioner to send his medical documents and accommodation requests to the Reasonable Accommodation Coordinator, who then conveyed the requests to the immediate supervisors. The hearing testimony indicated that the Reasonable Accommodation Coordinator shared minimal details about Petitioner's medical impairments with the immediate supervisors, such that they did not have any understanding of Obsessive Compulsive Disorder and how Petitioner's accommodation requests were supposed to enable Petitioner to perform the essential functions of his job. The immediate supervisors did not proactively try to learn about Petitioner's medical conditions. Rather, they assumed that if Petitioner had a problem, he would raise it with them.
While we are troubled that the immediate supervisors did not personally engage in the interactive process with Petitioner to truly understand what workplace barriers were inhibiting his performance, and relied on the Agency's Reasonable Accommodation Coordinator to handle Petitioner's accommodation requests and convey limited information to them, we find that this behavior alone is not sufficient to hold the Agency liable in this case.
We have previously held that an agency's failure to "properly engage in the interactive process, does not, by itself, demand a finding that [petitioner] was denied a reasonable accommodation." Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002). "Rather, to establish a denial of a reasonable accommodation, [petitioner] must establish that the failure to engage in the interactive process resulted in the agency's failure to provide a reasonable accommodation." Id., see also Humphrey v. Memorial Hosp. Ass'n, 239 F.3d 1128, 1139 (9th Cir. 2001) (holding that when an employer fails "to engage in the interactive process, liability is appropriate if a reasonable accommodation without undue hardship to the employer would otherwise have been possible.")
As stated above, Petitioner was not able to identify another possible accommodation that would have enabled him to perform the essential functions of the position at issue, and that was denied to him as a result of the lack of engagement from his immediate supervisors. Therefore, we find that the immediate supervisors' failure to engage in the interactive process was, by itself, not sufficient to establish that Petitioner was denied a reasonable accommodation.
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 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
__2/4/15________________
Date
1 Even assuming that Petitioner was a qualified individual with a disability, the AJ found that Petitioner failed to show that he was denied a reasonable accommodation. Specifically, the AJ determined that Petitioner could not identify a specific accommodation that the Agency had failed to provide that would have enabled him to successfully perform the essential functions of his position. The AJ found that Petitioner did not inform anyone in the Agency that the accommodations provided were inadequate. Overall, the AJ determined that Petitioner failed to show that there was any further accommodation that would have enabled him to perform the duties of his position.
2 The AJ further found that Petitioner failed to establish a prima facie case of disparate treatment on the basis of disability, in that he did not show a similarly situated individual who was not disabled was treated differently.
3 Petitioner did not challenge the other findings of the AJ with respect to the reprisal claim or claim of disparate treatment on the basis of disability. Therefore, the Commission exercises its discretion to not address those claims that were not raised by Petitioner.
4 According to EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship, an accommodation must be effective in meeting the needs of the individual. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002).
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0320140033
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320140033