0120111151
09-20-2013
Robert C. Russell, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Robert C. Russell,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120111151
Hearing No. 560-2008-0309X
Agency No. 20021415FAA05
DECISION
On December 15, 2010, Complainant filed an appeal from the Agency's November 18, 2010, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to discrimination on the bases of his race, color, national origin, age, disability and prior protected EEO activity when he was denied an accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Analyst (GS-12) at the Agency's facility in Oklahoma. The record reveals that in the fall of 2006, Complainant asked his second-line supervisor (Supervisor) if he could move from his cubicle to a different cubicle so that he could do his work more efficiently as his cubicle mate was too noisy. The Supervisor approved his request and Complainant moved. Soon thereafter, on or about March 22, 2007, Complainant asked his Supervisor if he could move to an empty office that he had identified. The office was connected to a GS-13 position for which Complainant had applied. Complainant told his supervisor that he was requesting the office as an accommodation for his multiple disabilities. As Complainant's disability was unknown to his supervisor, the Supervisor told him that it would not be a problem, provided Complainant produce medical documentation. Complainant provided the Supervisor with documents that he had with him regarding treatment he had received for post traumatic stress disorder (PTSD). The Supervisor turned over the information to the Disability Program Manager (DPM). The DPM requested additional documentation that was current as the information that Complainant provided was outdated. Complainant responded in writing by indicating "There has been no change regarding my medical condition since 1969 and therefore I see [sic] no need to submit new or current information as this would be an undue hardship on me personally."
On April 5, 2007, Complainant emailed the Supervisor to ask about his request to move to the office. He also indicated that as a reasonable accommodation, he wanted to be placed in the GS-13 position that was attached to the office. Complainant maintained that there was "dissent within the work environment" that he did not want to be involved with so therefore he needed the office.
On April 23, 2007, Complainant submitted medical documentation dated 2003 and 2005, which indicated that he had PTSD, sleep apnea and acid reflux. He also included documentation from the Central Arkansas Veterans Healthcare Center dated May 2, 2003, which showed that he had been treated for PTSD. Complainant again indicated that the documentation should be adequate as his condition had been constant and had not changed since he was diagnosed.
The documentation was forwarded to the DPM. Upon review, the DPM found that the information provided was insufficient to make a determination as to whether Complainant was an individual with a disability. The DPM made specific suggestions as to what specific medical information could be provided by Complainant in order to show his current condition. These suggestions were forwarded to Complainant.
Complainant did not provide the requested information. Therefore, on May 9, 2007, the Supervisor informed Complainant that, due to insufficient medical documentation, the Agency could not determine whether he was a qualified individual with a disability. The notice stated that Complainant could request reconsideration of the denial or submit "another request with current supporting medical documentation. Otherwise he was advised that he could seek alternative dispute resolution through the Office of Civil Rights or contact an EEO Counselor.
Thereafter, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), national origin (African), color (Black), disability (physical and mental), age (61), and reprisal when he was denied multiple requests for reasonable accommodation, most recently in May 2007.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing and issued a decision on July 29, 2010. Prior to the hearing, the Agency filed a motion for summary judgment which argued, among other things, that Complainant's request for a promotion as an accommodation should be denied. The AJ granted the Agency summary judgment with regard to this issue.
The AJ held a hearing regarding the remaining issues. The AJ found that the Agency was not required to provide Complainant with a promotion as an accommodation. The AJ found that even without a raise in pay, the reassignment would have been a promotion because of the higher grade. Accordingly, the AJ granted the Agency's summary judgment related to this matter.
With regard to Complainant's allegation that he was not provided a reasonable accommodation. The AJ found that while it was undisputed that Complainant requested a reasonable accommodation, the record shows that he provided medical documentation that was several years old. The AJ noted that the Commission has long held that "if an individual's disability or need for reasonable accommodation is not obvious, and s/he refuses to provide the reasonable documentation requested by the employer, then s/he is not entitled to reasonable accommodation." The AJ found that the Agency was entitled to request medical documentation to the extent necessary to establish that Complainant was an individual with a disability in need of the requested accommodation. The AJ noted that the Agency's request was reasonably tailored to that purpose.
The AJ further found that Complainant failed to explain why providing additional medical documentation would be a hardship and the AJ noted that Complainant several times indicated in writing that the medical documentation provided should be sufficient as his conditions had not changed. Accordingly, the AJ found that Complainant's unequivocal written refusals to provide any additional medical documentation resulted in the truncation of the reasonable accommodation process and therefore the Agency could not be held liable for the breakdown of the process. Therefore, the AJ found that Complainant was not entitled to a reasonable accommodation.
Further, the AJ found that Complainant failed to establish a prima facie case of discrimination with regard to all of his other bases because he failed to show that any similarly situated employees that failed to provide current medical documentation were treated more favorably than he was. The AJ also determined that Complainant failed to show that he had been subjected to reprisal because the Supervisor was not aware of Complainant's prior protected EEO activity.
Therefore, the AJ found that Complainant failed to demonstrate that he had been subjected to discrimination on any bases and he failed to show that the Agency was obligated to provide him a reasonable accommodation. The Agency fully implemented the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that when he was asked to provide additional medical documentation he gave what he had. He explains that providing more recent documentation was a hardship for him because he had to pay for the records. Complainant contends that there is no evidence anywhere which suggests or implies that he refused to provide the documentation. He asserts that the Agency failed to engage in a dialogue about the type of accommodation that he needed.
In response, the Agency contends that Complainant did not supply the requested updated medical documentation so they could not move forward with his request. The Agency indicates that the documents provided by Complainant on appeal are either undated or dated 2010. The Agency argues that the 2010 documentation is irrelevant to this case which was filed in 2007. The Agency contends that the failure to present documents at the time they were requested prevented the Agency from being able to evaluate his claims.
Further, the Agency maintains that it supports the Administrative Judge's decision regarding the reassignment requested by Complainant. The Agency maintains that Complainant's request was for a promotion to a GS-13 position from his current GS-12 Program Analyst position. The Agency noted that the Commission has stated that "[r]eassignment does not include giving an employee a promotion."
Finally, the Agency argues that the AJ correctly decided that Complainant failed to prove his reprisal claim because the Supervisor was unaware of Complainant's prior EEO activity. The Agency requests that the AJ's decision be affirmed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order. We find that, with regard to the AJ's finding of no discrimination, there is substantial evidence in the record to support the finding. We find the AJ correctly determined that the Agency was not required to provide Complainant with an accommodation because Complainant failed to provide updated medical documentation that was requested.1 We also agree that the AJ correctly found that Complainant failed to show that he was subjected to discrimination and reprisal with regard to the matter.
Further, we find that Complainant has not submitted any evidence on appeal other than his conclusory statements which shows that discriminatory animus was involved in this matter. Finally, we find that the AJ correctly partially granted the Agency's summary judgment motion, as a review of the record shows that there were no material facts at issue with regard to the fact that Complainant was requesting a promotion as an accommodation, which the Commission has long held is not required.
Accordingly, the Agency's final order finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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 (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
___9/20/13_______________
Date
1 The Commission has held that if an individual's disability or need for reasonable accommodation is not obvious, and the person does not provide the reasonable documentation requested by the employer, then the individual is not entitled to reasonable accommodation. Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 16, 2012).
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0120111151
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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