01a40926
05-31-2005
Steven S. Saleh, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Steven S. Saleh v. Department of Commerce
01A40926
May 31, 2005
.
Steven S. Saleh,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A40926
Agency No. 02-61-00234
DECISION
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.
Complainant, an agency employee since 1995, was employed as a Program
Officer at the agency's Telecommunications Opportunity Program (TOP)
and Information Applications, National Telecommunications and Information
Agency (NTIA) in Washington, D.C. Since 1986, complainant has suffered
from symptoms initially diagnosed as possible multiple sclerosis; however,
the diagnosis was later changed to fibromyalgia. Complainant has periods
of significant pain and fatigue and intermittently impaired mobility.
Complainant sometimes uses crutches and is treated with pain medication.
The record contains evidence regarding fibromyalgia, which is identified
as a complex, chronic condition which causes widespread pain and
fatigue. A number of symptoms/syndromes are usually associated with
fibromyalgia as follows: stiffness; increased headaches or facial pain;
sleep disturbances; cognitive disorders; gastrointestinal complaints;
genito-urinary problems; paresthesia; myofascial trigger points; chest
symptoms; dysequilbrium; leg sensations; sensory sensitivity/allergic
symptoms; skin complaints; and depression and anxiety.
On June 26, 2002, complainant filed the instant formal complaint,
claiming that he was the victim of unlawful employment discrimination
on the basis of disability (fibromyalgia), in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. Complainant's formal complaint was comprised
of the following six claims:
(1) complainant's request to telework as a reasonable accommodation was
submitted in November 2001; has been ignored; the agency's response
delayed; and unnecessary medical information has been requested;
(2) his supervisor shared his medical information with the Deputy
Assistant Secretary for Communications and Information, thereby violating
his privacy;
(3) his supervisor told someone in the organization that complainant
leaks information about his disability issues to the disabled community;
(4) on May 30, 2002, complainant was asked to schedule seven site visits
by September 30, 2002, although the agency was aware that he was unable
to walk due to the stress of the harassment and continued denial of his
accommodation request;
(5) the agency provided him with accommodations that do not address his
disability (i.e., a motorized scooter and permission to take breaks
at the Health Unit); and
(6) on September 25, 2002, he learned that his Supervisor agreed to
provide him with an ergonomic chair but placed restrictions on his
ability to use the chair to rest or recline, citing safety concerns.
By e-mail correspondence to the agency dated September 26, 2002,
and November 27, 2002, complainant's complaint was amended to include
three additional claims. Specifically, complainant claimed that he was
discriminated against on the bases of disability (fibromyalgia) and in
reprisal for prior EEO activity, in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq when:
(7) NTIA officials instructed his co-workers and other staff not to talk
with him, either in person, or over the telephone;
(8) despite being struck by an electrical cart while exiting his office,
he was not allowed to apply for advanced sick leave; and
(9) he was placed on Leave Without Pay (or told he could also be placed
on Absence Without Official Leave), for his absence from the office due
to a work-related injury which exacerbated his disability.
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a FAD by the agency. Complainant initially
requested a hearing before an AJ, but later withdrew that request and
requested that the agency issue a FAD.
In its FAD, the agency concluded that complainant did not establish
that the agency failed to provide him with reasonable accommodation
regarding the matters identified in claims (1), (5), (6), and (8).
The agency also determined that complainant did not establish that he
was the victim of disparate treatment regarding the matters identified
in claims (2) - (4) and (7) - (9).
Reasonable Accommodation (Claims (1), (5), (6), and (8) )
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. See 29 C.F.R. �
1630.9. The employee must show a nexus between the disabling condition
and the requested accommodation. See Hampton v. United States Postal
Service, EEOC Appeal No. 01986308 (July 31, 2002).
For the purposes of analysis, we assume arguendo, and without so finding,
that complainant established that he is a qualified individual with
a disability. We further find that the agency did not fail to provide
complainant with a reasonable accommodation. Morever, we note the
following salient facts supporting a determination that the agency did
not fail to provide complainant with a reasonable accommodation.
Telework Request (Claim (1))
The Commission determines that the agency was warranted in requiring
complainant to provide medical documentation before granting him the
requested unstructured telework/leave arrangement. We note that the
Commission has held that an employer is entitled to documentation from
an individual requesting a reasonable accommodation which would show
that the individual has a covered disability for which they require a
reasonable accommodation. Payne v. Department of Education, EEOC Appeal
No. 01994044 (August 15, 2002).
Complainant's second line Supervisor (Supervisor), who was the deciding
official regarding the reasonable accommodation requests, stated that
complainant �insisted on working at home and altering his tour of duty
to an unpredictable schedule.� Specifically, the Supervisor stated that
complainant submitted his physician's letter dated December 26, 2001,
wherein the physician stated that complainant �has restrictions on his
mobility that do not impact his ability to think and work productively.
It would be advisable that when it is too strenuous for home to get
to work, he be allowed to work from home.� The Supervisor stated that
after discussing complainant's physician's December 26, 2001 letter with
the Chief NTIA Management Division, they concluded that the letter
was inadequate, and that a more detailed letter was needed so they
could evaluate complainant's request for accommodation. The Supervisor
stated that complainant's physician's second letter, dated March 26,
2002, �raised more questions and concerns about [Complainant's] ability
to perform the essential functions of the Program Officer's position.�
The Supervisor stated that in the March 26, 2002 letter, complainant's
physician stated that complainant's unspecified condition required
�large doses of narcotic analgesics� and referred to �his difficulty
concentrating.� The Supervisor concluded that the physician's statements
did not justify complainant's �unusual� time schedule. The Supervisor
stated during the relevant period, she and the Chief determined that
they would contact the Human Resources seeking more guidance on the
appropriate actions to take.
The Supervisor stated that on May 14, 2002, she sent complainant a
memorandum stating that his request for accommodation had been reviewed;
and that the agency physician indicated the medical information provided
was insufficient and requested that complainant sign a release form for
the agency physician to communicate with his physician. The Supervisor
further stated that on June 6, 2002, she sent complainant a memorandum.
Therein, the Supervisor notified complainant in lieu of his accommodation
request, the agency physician determined that the appropriate action
based on complainant's symptoms outlined in his physician's March 26,
2002 letter, was to offer complainant the use of a motorized wheelchair in
order to decease the risk of injury from falling at work. The Supervisor
also notified complainant that if he feels tired or weak, and needs to
rest, that he should inform his supervisor that he needs to go to the
Health Unit.
The Supervisor stated that on July 29, 2002, she sent complainant a
memorandum in response to his request to work from home at least two
days a week, depending on the severity of his symptoms. The Supervisor
stated that she informed complainant that she could not grant his request.
However, the Supervisor offered complainant an alternative: working from
home on a fixed, one-day-a-week schedule. The Supervisor stated that
complainant's two-day work at home request was not honored because there
was insufficient work at his position to justify working two days per week
at home. The Supervisor stated that in accordance with a consultation
between the agency physician and complainant's physician, the �one day
in the middle of the week was designed to allow [Complainant] to rest
mid week and reduce his need to commute.� Furthermore, the Supervisor
stated that complainant was notified of the following accommodations:
an ergonomic work chair with footrest to accommodate rest at his
workstation; flexible schedule and use of annual leave and sick leave;
he would be allowed to make up for any time needed for his doctor's visit
on the same day that the visit occurred; approval of his request for
an automatic door opener at his workstation; and his travel assignments
would be restructured per his physician's recommendation.
The Supervisor stated that on September 13, 2002, she sent complainant a
memorandum in response to his request for an accommodation of not having
to schedule leave in advance given the �medically documented unpredictable
nature of illness with people who have my diagnosis,� make-up time and
alternative work schedule (AWS). The Supervisor notified complainant
that he �must schedule all leave, including sick leave for physician
appointments, in advance when possible, and that, when leave due to
illness is unscheduled, you need to submit medical certification for
such absences for three or more workdays.� The Supervisor stated that
�given the nature of his work, NTIA needed to know with predictability
and reliability when [Complainant] would work and for what duration.�
Regarding the make-up time, the Supervisor noted that complainant
continued to take unscheduled leave and that �it was not clear if or when
he was making the time up.� The Supervisor reminded complainant of the
July 29, 2002 memorandum to request permission from his supervisor before
doing any make-up time. The Supervisor stated that she also reminded
complainant that he was only permitted to make-up time the same day he
was absent, and the time was to be made up between 7 a.m. and 6:30 p.m.
The Supervisor stated that �it was necessary to ensure the continued
productivity of the office and because the recording keeping for the
Complainant's time and leave would be overly burdensome.�
The Supervisor stated that she denied complainant's AWS request �because
doing so appeared inconsistent with his prior requests and the bases for
such requests.� The Supervisor further stated that complainant's AWS
request �appeared to change the telework accommodation that was offered.�
Accommodations That Do Not Address His Disability (Claim (5))
Regarding claim (5), the record does not support a finding that the agency
provided accommodations that failed to address complainant's disability.
We note, in particular, complainant's dissatisfaction with the outcome of
his request that he be permitted to rest on the floor under his desk, or
have the agency provide a lounge chair that he could store in his cubicle.
The agency denied these requests, determining safety issues and personal
disruptions (i.e., contact with electrical wires, obstruction of office
passages), and proposed the alternative that complainant take his breaks
in the Health Unit. Noting that complainant argues that the trip to the
Health Unit for breaks would be too fatiguing, the agency noted that
if complainant was too ill to arrive at the Health Unit on his own,
arrangements could have been made to have him transported there, or to
his home.
Ergonomic Chair (Claim (6))
The Commission determines that the Supervisor properly clarified the
purpose and use of the ergonomic chair after learning that complainant
was resting in the chair in a �lying down position because doing so was
hazardous.� The Supervisor stated that complainant was �cautioned to
use the chair in accordance with its specifications,� but that later he
choose a different ergonomic chair with no features or a footrest.
Advance Sick Leave (Claim (8))
The Commission determines that the Supervisor properly denied
complainant's request for advanced sick leave because of the agency's
concerns that he would not be able to pay back the advanced sick leave.
Specifically, the Supervisor stated that while complainant was granted
advanced sick leave in 1996 and 1997, complainant by his own admission
acknowledged that his condition had deteriorated since the relevant period
and had not offered any evidence to show that he was as likely to be able
to pay back the advanced sick leave as he did then. Furthermore, the
Supervisor stated that complainant was informed that he could substitute
annual leave for sick leave, but that the agency did not consider this
an accommodation because other employees were allowed to do the same.
Furthermore, the Supervisor stated that she based her decisions on
complainant's reasonable accommodation requests on the advice and guidance
of Manager, Human Resources, complainant's first line Supervisor, agency
physician, and Chief, NTIA Management Division.
Regarding complainant's claim that the accommodation process has not
been interactive and his requests were delayed, the Supervisor stated
that the process has been interactive and that his requests were handled
in a timely manner. The Supervisor further stated �any delay that took
place is attributable to [Complainant's] resistance to provide adequate
medical information as part of the interactive process.�
Claims (2) - (4), and (7) - (9)
Complainant also claims that he was subjected to discrimination when:
his second line Supervisor shared his medical information with the Deputy
Assistant Secretary for Communications and Information, and violated
his privacy (claim (2)); second line Supervisor told someone in the
organization that complainant leaks information regarding disability
issues to the disabled community (claim (3)); on May 30, 2002, he was
asked to schedule seven site visits by September 30, 2002, although the
agency was aware that he was unable to walk due to the stress of the
harassment and continued denial of his accommodation request (claim 4));
NTIA officials instructing his co-workers and other staff not to talk
with him, either in person, or over the phone (claim (7)); that despite
being struck by a electrical cart while exiting his office, he was not
allowed to apply for advanced sick leave (claim (8)); and he was placed
on Leave Without Pay (or told he could also be placed on AWOL) for his
absence from the office due to a work-related injury which exacerbated
his disability (claim (9)).
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We find that the record does not support that the alleged incidents
actually occurred and/or if it occurred, the agency has articulated
legitimate, nondiscriminatory reasons for the actions in question.
Regarding claim (7), the Commission notes that the agency determined that
complainant did not elaborate on this claim, but indicated that during
the period relating to this claim, complainant was not in a duty status
and therefore had no need to discuss work assignments with co-workers.
The agency further noted that if complainant contacted employees at work
to discuss personal matters, the agency has the right to limit or prohibit
personal telephone calls, visits, or other disruptions. Regarding claims
(8) and (9), the agency determined that because complainant's attendance
record reflected an absence of accrued annual or sick leave, approved
OWCP benefits, and there was no reasonable assurance that complainant
could repay advanced leave, the agency had no alternative except to place
complainant on Leave Without Pay status. The agency noted, moreover
that even if complainant has been threatened with being charged AWOL
as he claims, it would constitute a remark or threat unaccompanied by
concrete action and would not render him aggrieved.
We further determine that complainant has not shown that the agency's
articulated reasons were a pretext for discrimination.
After a careful review of the record, the Commission AFFIRMS the agency's
final decision finding no discrimination.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 31, 2005
__________________
Date