[Redacted], Dominic M., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Feb 14, 2023

Appeal No. 2022000021 (E.E.O.C. Feb. 14, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dominic M.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022000021 Hearing No. 550-2018-00209X Agency No. 9MOR17007 DECISION On October 4, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 10, 2021, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Police Officer at the Agency’s Security Forces Squadron, Joint Base Elmendorf-Richardson, in Anchorage, Alaska. He identified his disability as a tear in his meniscus, arthritis, and damage to his femur. Complainant's position required that he undergo an annual Physical Agility Test (PAT), which included push-ups and a 1.5-mile run. On November 18, 2016, Complainant requested a waiver or reasonable accommodation for the PAT due to his knee condition which prohibited him from running. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022000021 2 In response, on November 29, 2016, the Agency responded and stated that the approved alternative was the Physical Readiness Appeals Test (PRAT). The PRAT included the push-up portion of the PAT but required a medical clearance for the run. Around December 8, 2016, Complainant completed the push-up portion of the PAT, but was not medically cleared to run. Complainant requested to replace the 1.5-mile run with a two-mile walk, however, Complainant’s third-line supervisor (Commander) explained it was not within their authority to grant, nor was it a permissible alternative event with regard to Agency civilian police PAT policy. The Agency provided that the PRAT was the only available alternative to the PAT. On April 2, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (a tear in his meniscus, arthritis, and damage to his femur) when, on November 29, 2016, he was denied a waiver for an alternate event on the PAT by his second level supervisor (Supervisor) and the Commander. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency determined that Complainant was an individual with a disability, however, he was not a qualified individual with a disability in that the record evidence indicated that he was not capable of performing the essential duties of his position. The Agency explained that Complainant’s position required that the employee maintain physical readiness or fitness because it determined an individual’s capability to perform strenuous job tasks; therefore, physical fitness was a bona fide occupational qualification. In addition, the Agency noted that Complainant recently had surgery on his right knee and was on light duty after reporting back from leave in August 2016. Despite a request from the Agency, Complainant did not provide any medical documentation indicating his limitations following surgery, nor the temporary or permanent nature of his condition following surgery. As such, the Agency concluded that Complainant was not entitled to a reasonable accommodation. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that he is a person with a disability as should be apparent from his status as a disabled, service connected, veteran. Included with his appeal is a letter from the Department of Veterans Affairs stating that he receives compensation due to being a Veteran with a disability. 2022000021 3 In response, the Agency contends that even if Complainant’s running limitation qualified as a disability, the record did not establish that his limitations were permanent. The Agency argues that the FAD was correct, and that Complainant is not a qualified individual with a disability. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 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. See 29 C.F.R. §§ 1630.2(o), (p); Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). A “qualified individual with a disability” is one who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position and who with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). “Essential functions” are the fundamental duties of a job, that is, the outcomes that must be achieved by someone in that position. Gwendolyn G. v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013). A request for modification or change at work because of a medical condition is a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Ques. 1. After receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation.” 29 C.F.R. pt. app. § 1630.9. Thus, “it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability...[to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also 29 C.F.R. pt. 1630 app. § 1630.9; Enforcement Guidance on Reasonable Accommodation at Q. 5. To establish a denial of reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 16302(m); and (3) the Agency failed to provide a reasonable accommodation. 2022000021 4 At the outset, we assume for the purposes of the following analysis, without so finding, that Complainant is an individual with a disability. Complainant has provided indications that he suffers a right knee condition, and appears to have satisfied his job requirements outside of and prior to the PAT. After reviewing the evidence, we find that the Agency provided Complainant with an appropriate response to his request for a reasonable accommodation for the PAT. The Agency indicated that the available alternative to the PAT was the PRAT which included an option for an employee to obtain medical clearance for the running portion of the test for which Complainant has not argued, and the record does not show, that Complainant provided medical clearance for the running portion of the test. Moreover, the record reflects that Complainant’s position description required that the employee maintain physical readiness or fitness. In light of Complainant’s medical restrictions, Complainant was unable to meet these essential job-related functions of the position. Likewise, no accommodation was identified that would have allowed him to perform those essential functions. There is no indication that the Agency failed to engage in the interactive process, nor that there was another possible modification for the PAT or PRAT based on Agency policy. While Complainant would have preferred to perform a walk in lieu of the run requirement, the available accommodation was a medical clearance for the running portion of the test. We note that a complainant is not entitled to the accommodation of his choice, he is entitled to an effective accommodation. See Lathum v. U.S. Postal Serv., EEOC Appeal No. 01A53430 (Aug. 22, 2006). Here, the available alternative to the mandatory PAT was the PRAT. It is not evident that there was another solution available in order to test Complainant’s physical abilities, which as noted by the Agency, were an essential function of his position. Additionally, as noted, Complainant did not provide the medical clearance necessary to perform the PRAT. In this light, Complainant failed to assist the Agency in reaching an alternate solution to accommodate his disability. In consideration of the above, we find that Complainant has failed to show that the Agency violated the Rehabilitation Act. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not established that discrimination occurred, and we AFFIRM the Agency’s final decision. 2022000021 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2022000021 6 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 14, 2023 Date