0120122360
11-30-2012
Kathryn R. Baxter, Complainant, v. Michael E. Fryzel, Chairman, National Credit Union Administration, Agency.
Kathryn R. Baxter,
Complainant,
v.
Michael E. Fryzel,
Chairman,
National Credit Union Administration,
Agency.
Appeal No. 0120122360
Agency Nos. 10-07 and 10-081
DECISION
On May 4, 2012, Complainant filed an appeal from the Agency's April 10, 2012, final decision concerning her 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. 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 decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant failed to prove that the Agency subjected her to unlawful discrimination and harassment and denied her a reasonable accommodation for her disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Analyst (External Training Coordinator) at the Agency's Office of Small Credit Union Initiative (OSCUI) in Alexandria, Virginia. Complainant has worked in the OSCUI since March 2007. The position description for Program Analyst states that the duties of the position including developing training sessions, presentations, and educational tools; providing technical assistance and program guidance; developing and presenting information regarding the small credit union initiative, low-income, and other programs for examiner training classes; processing loan requests by reviewing applications; and processing technical assistance requests by reviewing applications.
On October 19, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability and in reprisal for prior protected EEO activity when:
1. After Complainant was diagnosed with cancer in March 2009, her first-line supervisor (S1) increasingly used her for clerical support rather than the training and developmental tasks outlined in her job description, and Complainant was no longer provided with opportunities by S1 and her second-line supervisor (S2) to serve on working groups and committees;
2. In March 2009, Complainant was accused of being insubordinate by the S1 when she took a free computer course offered by the Agency;
3. On July 7, 2009, S2 accused Complainant of creating a "bad environment" after she requested an accommodation in March or April 2009 because of her medical diagnosis and treatment. S2 said Complainant needed to watch her reputation around the Agency because this can stick, and Complainant would probably need a referral if she wanted to go to another department;
4. Between April 2010 and July 2010, Complainant logged 20 travel nights even after she provided documentation from her doctor for only light travel. Complainant was not given any opportunity to rest after travel dates by S1 and S2 because they required her to come into the office the next day following travel;
5. On May 7, 2010, Complainant was closely monitored by S2 while at an educational event in Detroit, Michigan;
6. During the week of May 17, 2010, to May 20, 2010, Complainant was closely monitored by S2 while attending a staff meeting;
7. On May 20, 2010, while at a training meeting in Chicago, Illinois, S2 falsely reported to S1 that Complainant arrived late to the meeting and was late setting up the room for the meeting;
8. In late May 2010, S1 assigned Complainant task lists with unrealistic and conflicting due dates and assigned other responsibilities to Complainant that hindered the completion of the assignments on her task lists;
9. In August 2010, S1 created a task list for Complainant and posted it to the common drive on September 13, 2010, which was Complainant's first day back to work after her surgery, while S1 created a similar task list for another employee but did not post it until October 15, 2010. S1 also singled out Complainant for the creation of a telephone log and sent daily updates about Complainant's progress to S1;
10. After returning to work from surgery in August 2010 and thereafter informing S1 that she would not be able to continue the frequent compressed travel schedule, S1 provided a travel schedule to Complainant that included seven nights of travel between October and November;
11. In early August 2010, Complainant requested a transfer to another department as a reasonable accommodation. Following Complainant's request for transfer, subsequent requests to work from home were denied, even for medical accommodation;
12. On August 11, 2010, S2 denied Complainant's request for administrative support to assist with thank-you letters;
13. On August 23, 2010, S2 contacted S1 to inquire about Complainant's work performance;
14. On August 23, 2010, S2 harassed Complainant about having her door closed; falsely accused Complainant of having the door closed for three hours when that was not the case, and told Complainant that she was required to take medical leave in order to make a call to her doctor while in her office during a break;
15. On August 23, 2010, S2 announced a "no closed door policy" that applied only to Complainant, S1, and a co-worker;
16. On September 23, 2010, and September 24, 2010, Complainant was asked to immediately submit a doctor's note for sick leave approval, but Complainant's co-worker, who was out of work for more than a week, was not required to submit a doctor's note until after she returned to work; and
17. On October 1, 2010, Complainant received an unjustified negative mid-year performance evaluation.
The Investigation
In an investigative statement, Complainant stated that after management became aware of her condition, S1 assigned Complainant more clerical duties instead of the duties reflected in her position description. Complainant stated that she informed S1 that the clerical duties were outside the duties of her position.
Complainant further stated that she requested permission from S1 to take an advertised computer course, but S1 told her that it had to be cleared through S2. Complainant stated that S2 told S1 that the training slot was allocated for the back-up Controller, and Complainant was not authorized to take the class. However, Complainant stated that during her performance review, she was told that she would become the back-up Controller if the Controller left, and when the Controller left, Complainant thought she became the back-up Controller. Complainant stated that the Human Resources Division sent her an e-mail scheduling her for the training course, but when she showed up for the course, S2 asked her to leave because she had not been authorized for the course. Complainant stated that S1 called S2 and said that the reason Complainant was taking the training course was to pull credit reports, and S1 wrongfully accused her of insubordination.
Regarding claim 3, Complainant stated that on July 7, 2009, she had a meeting with S2 around 3:25 p.m., and S2 accused her of causing a bad work environment based on information from an anonymous source. Complainant stated that the meeting with S2 was a "grilling" for more than two hours.
Complainant further stated that she was released to work full-time on January 4, 2010, but between April 2010 and July 2010, she was assigned to travel on 20 assignments which required air-travel. Complainant stated that when she returned from a travel assignment, she was expected to report to work in Alexandria. She stated that S2 ignored her condition when she assigned Complainant these travel assignments. Complainant stated that these travel assignments were "extremely harmful."
Regarding claim 5, Complainant stated that while in Detroit, Michigan, at a conference, S2 texted S1 and alleged that Complainant left the conference room periodically. Complainant stated that S1 then text-messaged her from Alexandria and instructed Complainant to stop leaving the conference room.
Complainant stated that a similar incident occurred in Chicago approximately a week later. She stated that S2 again closely monitored her movements at this staff meeting and reported her movements to S1. Complainant claimed that of the 15 to 17 other staff members attending this Chicago event, she was the only one who was subjected to being closely monitored.
Complainant further stated that S1 assigned her a list of unrealistic due dates and posted her task list to a common drive on September 13, 2010. She stated that after her return to work, S1 increased her workload without consideration for her doctor's appointments. Complainant stated that she was singled out and was the only one given a heavy workload without assistance, whereas C1 received assistance with her projects.
Complainant also stated that she had a relapse in August 2010 that required additional surgery for her cancer. Complainant stated that she took leave from August 26, 2010, until September 2, 2010. She stated that S1 issued her a set of travel plans that were scheduled to begin the first week of October. Complainant stated that she was not released to travel by her physician until November 2010. Complainant also stated that her physician restricted her from pulling suitcases and lifting boxes, but S1 ignored her disability and scheduled her for compressed travel.
Complainant further stated that she requested a job transfer because she realized that her condition was not going to improve. Complainant stated that she requested three choices for a job transfer: 1) the Office of Consumer Protection, 2) the Office of Examination and Insurance, or 3) the Division of Training. Complainant stated that S1 denied her request for this reasonable accommodation, as well as her request to work at home.
Complainant stated that S2 denied the use of her secretary to help with processing "thank you" letters. Complainant stated that she was the only one denied administrative support, and she perceived this as yet another adverse action.
Regarding claim 13, Complainant stated that because of the office layout, there was no legitimate reason for S2 to call S1 about her work assignments, and a reasonable person would have approached her directly. Regarding claims 14 and 15, Complainant stated that when S2 came to her office, her door had been intermittently closed so that she could speak with the EEO Manager. Complainant further stated that S2 knocked on the door while she was on the telephone with the EEO Manager, entered her office, and asked who was on the telephone with her. She stated that there had not been a closed office door policy at that time, but a closed-door policy was enacted the next day in order to target Complainant
Regarding claim 16, Complainant stated that C1 requested a doctor's note from her on the day she was released from the hospital. Complainant stated that she was treated differently than a co-worker (C2), who informed her that she did not have to submit a medical note until she returned to work. Regarding claim 17, Complainant stated that her performance review was negative because it said that she was not performing up to the CU-13 level with four years of experience. Complainant stated that the comments in her review were harsh, and C1 was not subjected to a negative performance review. Complainant stated that S1 had never broached the subject of a mid-year review until Complainant requested a transfer in August 2010, and Complainant received the negative review less than six weeks after she filed an EEO complaint.
In response to Complainant's allegations, S1 stated that 50 percent of Complainant's responsibilities required travel for the purpose of working with such groups as the Chartering Working Group, but Complainant requested not to travel because of her medical condition. S1 stated that she increased Complainant's clerical duties and replaced the training and developments tasks cited in Complainant's position description. S1 stated that Complainant was assigned to evaluate the proposed board members', committee members', and staffs' credit histories. S1 stated that Complainant did not travel from March 2009 to August 2009 and was on medical leave because of surgery from August 2009 to January 2010.
S1 further stated that Complainant requested a job transfer on August 17, 2010, because she could no longer travel to the same degree. S1 stated that she informed Complainant that in order for her and others to evaluate her request for accommodations, she needed to submit updated medical documentation. S1 stated that she informed Complainant that until the updated documentation was submitted, Complainant was required to continue with her travel plans and work schedule. S1 stated that she offered Complainant duties that complied with her physician's restrictions dated October 13, 2010, including: 1) no lifting, but required to still pack boxes; 2) limited travel (once a month); 3) telecommuting once a month; and 4) continuing on the Gliding Work Schedule. S1 stated that she suspended Complainant's travel plans through September 18, 2010, and from October 2010 through February 2011. She stated that on October 25, 2010, Complainant submitted an official reasonable accommodation request, but Complainant did not accept S1's offer regarding travel assignments until March 2011. S1 stated that Complainant only traveled once from August 2010 through March 2011.
S1 also stated that Complainant was not merely assigned to perform clerical tasks, and she was not denied opportunities to work with committees or work groups. She stated that the only duties that were changed for Complainant were those needed to accommodate her inability to travel and those to maintain the office's mission, and Complainant's disability did not impact her eligibility to work on any work group or committee. S1 stated that after she became aware of Complainant's condition, Complainant was selected to work on the Chartering Project, the Internal Communications Workgroup, the Subject Matter Examiners Conference, and she was assigned to lead three focus groups.
S1 stated that Complainant signed up for the Delphia course, which is a course that is outside the purview of Complainant's position and not designed for anyone in the office. S1 stated that she instructed Complainant to send an e-mail to the coordinator for the Delphia course to remove her name from the course-list and told Complainant that she needed authorization from her supervisor to take the course. S1 stated that Complainant attended the course knowing that she had been fully informed of the reason why the course was not beneficial for her job function.
S1 stated that Complainant did not submit her doctor's letter requesting reasonable accommodation until October 25, 2010. S1 stated that Complainant's doctor restricted Complainant from lifting more than 25 pounds or repetitive lifting of more than 10 pounds and from traveling more than once a month until further evaluation. S1 stated that in April 2010, Complainant had not yet submitted her request for a reasonable accommodation, and she scheduled Complainant to travel to different destinations because her position required travel. S1 stated that she and Complainant are the sole employees required to attend and facilitate all training events nationwide. S1 stated that she knew that Complainant had cancer, but she was not aware that she had any restrictions during the relevant time period. S1 also stated that she presumed that Complainant was able to perform her regular duties, which included travel, packing boxes, and facilitating and coordinating training events because she had no medical documentation.
S1 stated that Complainant's assignments were realistic, and there were no conflicting due dates. S1 stated that the office was assigned to a high-profile project, and accordingly, gained C1 as a staff resource. S1 stated that her focus then shifted from the training division to the Community Development Capital Initiative high profile project. S1 stated that she asked both C1 and Complainant to submit individual task lists. She stated that if the due dates were unrealistic, Complainant did not voice her concerns so that the dates could be modified. S1 stated that the only response offered by Complainant was that task lists were a waste of time. S1 stated that task lists played a significant and beneficial role in monitoring what was being accomplished.
S1 also stated that she created a task list for Complainant on September 13, 2010, prior to the start of her (S1's) scheduled leave on September 15, 2010. She stated that she planned for S2 to supervise Complainant and C1 while she was on leave, and she e-mailed S2. She stated that she followed protocol by posting the task list on the shared drive, and C1 did not follow procedures when she failed to post her task list on the common shared drive as all employees are required to do. S1 also stated that Complainant and C1 were instructed to maintain a telephone log, but Complainant objected and did not comply with the instruction.
S1 stated that, in the past, S2's secretary assisted the training division with some administrative tasks, but there were times when the secretary's workload would not allow the secretary to assist the training division. S1 also stated that she asked Complainant to submit a doctor's note when she was out of work because an employee is required to submit a doctor's note if they are out of work for more than three days.
S1 stated that everything in Complainant's mid-year review was factual, and S1 was required to provide a mid-year performance review when the employee failed to perform up to standards. S1 stated that the mid-year review is as an opportunity for the employee to improve.
S1 stated that Complainant had been instructed before the incident at issue to keep her office door open, except when talking to her physician. S1 stated that if a call had ended, then she should have re-opened her door.
S2 stated that Complainant was pulled from the class because the training class was only intended for Delphia users. S2 stated that not only did Complainant show up for attendance for the training class against orders, she showed up on the day that S2 was out of the office. She stated that Complainant never notified the Office of the Chief Financial Officer that she could not attend this training course, as she had been fully instructed. S2 stated that Complainant was insubordinate.
Regarding claim 5, S2 stated that she observed Complainant leaving before the start of a session, and at the beginning of the session, there was a problem with the audiovisual (A/V) equipment. S2 stated that Complainant returned after the scheduled start time, and the session was delayed approximately 10 to 15 minutes as Complainant addressed the A/V problem. S2 stated that Complainant was the go-to person for any logistical problem, and as such, her actions were reported to S1.
S2 stated that she did not recall telling Complainant that she caused a bad environment in the office, and it was rare to have a direct conversation with Complainant. S2 further stated that at the time that Complainant requested assistance from her (S2's) secretary, she set her secretary's priorities that excluded assisting the Complainant. S2 stated that the office had a hectic work climate, and during the relevant time period, she decided to set the CPA audit as her secretary's priority.
Regarding claim 13, S2 stated that S1 called her when S1 was working at home and discussed work-related issues, including the fact that Complainant had been assigned to provide information for her monthly meeting. Regarding claims 14 and 15, S1 stated that she observed that Complainant's door was shut at 11:15 a.m. on August 23, 2010, and she waited until 3:15 p.m. to return to Complainant's office. She stated that she walked into Complainant's office and saw Complainant on the telephone. S1 stated that she told Complainant that personal calls should not be to the point that it interfered with Agency business, and that if calls were going to be extensive, she should lake leave or do it on her lunch hour. She stated that the closed door policy had been an informal policy, but she decided to make it a formal policy.
C1 stated that based on her observation of the treatment of others and her own experience, she thought the office was a hostile environment. C1 stated that she has observed bullying, intimidation, the singling out of staff, reprimands given out for unrelated job performance issues, and employing passive aggressive behavior. C1 further stated that it seemed that it is always some staff member's "turn" and now it is Complainant's turn because Complainant's unfavorable treatment worsened with the news of her illness.
The record contains a copy of a letter from Complainant's physician dated October 13, 2010. In the letter, the physician advised the Agency that in August 20o9, Complainant underwent a modified-radical mastectomy with auxiliary dissection for breast cancer. The physician further stated that Complainant was fatigued, and teleworking or a shortened workday should be considered for Complainant. The physician stated that Complainant must take steps to prevent Lymphedema and trauma to her arm. Consequently, the physician restricted Complainant from lifting anything over 25 pounds or lifting repetitively over 10 pounds. Additionally, the physician stated that Lymphedema can be caused by lifting or carrying suitcases or cabin pressure, and therefore, he recommended that Complainant not travel more than once a month until she was re-evaluated six months later. The physician concluded that "[i]n light of ongoing concerns about lymphedema, it may be best for all involved that she transfer to a job which does not require the traveling because it requires the lifting and carrying." Report of Investigation (ROI), Exhibit 11b.
Final Agency Decision
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). In its decision, the Agency found that although Complainant has a physical condition that substantially limits the use of her left arm and ability to lift, she was not a qualified individual because she acknowledged that she was unable to perform the requirements of her position with or without reasonable accommodation. The Agency also found that Complainant failed to establish a prima facie case of disability discrimination because she did not demonstrate that similarly situated non-disabled employees were treated more favorably than she was under similar circumstances. The Agency also noted that claim 11 could be analyzed as a claim that the Agency failed to provide her with a reasonable accommodation. The Agency found that it provided extensive accommodations to Complainant, including limiting her travel and granting her Maxiflex or other alternative work schedules telework options.
Regarding reprisal, the Agency determined that Complainant previously engaged in EEO activity when she contacted the EEO Office on August 24, 2010. Therefore, reprisal could only be a basis for actions alleged in claims 16 and 17. The Agency noted that the record revealed that Complainant and a comparative co-worker did not have the same supervisor, but each Agency employee was required by Agency rules to provide a doctor's note when absent from work. The Agency concluded that Complainant did not present any evidence that the matters in claim 16 resulted in an adverse action or that there was a nexus between her prior EEO activity and any of the alleged actions in claim 16. The Agency further determined that Complainant received the same score of 200 and year-end rating of "Successful" in 2009 and 2010, before and after her prior EEO activity and, therefore, Complainant did not demonstrate that her performance evaluation was motivated by reprisal.
With respect to Complainant's harassment claim, the Agency found that Complainant did not establish that the alleged actions were severe or pervasive enough to constitute a hostile work environment or that the actions were motivated by her disability or EEO activity. The Agency also concluded that it provided legitimate, non-discriminatory reasons for its actions for each claim, but Complainant failed to prove that these reasons were pretext for unlawful discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that a comparative employee (C1) who shared the same title, grade, and position description as Complainant reported that Complainant had been the "target of inappropriate reprisal, bullying/intimidation, and passive aggressive tactics," although she did not know the basis for the tactics. Complainant also reiterates the allegations she made during the investigation and in her complaints. The Agency requests that we affirm its final decision.
STANDARD OF REVIEW
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 (EEO MD-110), at Chap. 9, � VI.A. (Nov. 9, 1999) (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").
ANALYSIS AND FINDINGS
Disparate Treatment and Hostile Work Environment
Complainant's complaint can be analyzed under both disparate treatment and hostile work environment analyses. In order to prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In order to establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an environment, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
As an initial matter, we note that, the events in this case arose after January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. However, for purposes of analysis and without so finding, we assume arguendo that Complainant is a qualified individual with a disability. Moreover, we also assume arguendo that Complainant established a prima facie case of reprisal and disability discrimination.
Nevertheless, upon review, we find that the Agency provided legitimate, non-discriminatory reasons for each alleged action, as detailed above. For example, regarding claim 1, the Agency stated that after Complainant informed the Agency of her need for an accommodation, S1 increased Complainant's clerical duties and replaced the training and developments tasks cited in Complainant's position description. S1 further stated that after she became aware of Complainant's condition, Complainant was selected to work on the Chartering Project, the Internal Communications Workgroup, the Subject Matter Examiners Conference, and she was assigned to lead three focus groups. Regarding claim 2, S1 stated that Complainant was accused of insubordination when she took a computer course because the course was outside the purview of Complainant's position, and Complainant had been instructed not to take the course. Regarding claim 7, S2 reported Complainant's actions to S1 because she observed Complainant leaving before the start of a session in Chicago, and at the beginning of the session, there was a problem with the audiovisual (A/V) equipment. S2 further stated that Complainant was the go-to person for any logistical problem, and as such, her actions were reported to S1.
Regarding claim 8, S1 stated that Complainant's assignments were realistic, and there were no conflicting due dates. Regarding claim 12, S1 also stated that there were times when the secretary's workload would not allow the secretary to assist Complainant. Regarding claims 14 and 15, S2 stated that she observed that Complainant's door had been closed for an extended period of time. S2 stated that the closed door policy had been an informal policy, but she decided to make it a formal policy. Regarding claim 16, S1 stated that she asked Complainant to submit a doctor's note when she was out of work because employees are required to submit a doctor's note if they are out of work for more than three days. With respect to claim 17, S1 stated that everything in Complainant's mid-year review was factual, and she was required to provide a mid-year performance review when an employee failed to perform up to standards.
We note that, for many of Complainant's claims, Complainant's version of the facts differs from management's version of the facts. As such, Complainant's case might have benefited from a hearing that allowed an AJ to assess the credibility of the witnesses, but Complainant withdrew her hearing request. We find that Complainant failed to show that any of the Agency's articulated reasons were pretext for unlawful discrimination.
Additionally, to the extent that Complainant also alleged that she was subjected to a hostile work environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Specifically, a finding of a hostile work environment is precluded by our determination above that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Consequently, we find that the Agency properly found that Complainant failed to prove that the Agency subjected her to unlawful discrimination or harassment on the alleged bases.
Reasonable Accommodation
Claims 4, 10, and 11 can also be analyzed as reasonable accommodation claims. 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. 29 C.F.R. � 1630.9.
In this case, the record reveals that on March 2, 2009, Complainant was diagnosed with breast cancer and informed the Agency of her diagnosis shortly thereafter. From March 2009 to July 2009, the Agency relieved Complainant of her travel duties; in August 2009, the Agency permitted Complainant to temporarily modify her work schedule to a Maxiflex work schedule; and from August 2009 to January 2010, Complainant was out of the office on extended leave for medical purposes. Complainant contends that she logged 20 travel nights from April 2010 until July 2010, although she was only capable of light travel.
However, S1 stated that she informed Complainant that in order to evaluate her accommodation request, Complainant needed to submit updated medical documentation. S1 stated that she informed Complainant that until the updated documentation was submitted, Complainant was required to continue with her travel plans and work schedule. S1 stated that Complainant did not submit medical documentation from her physician until October 25, 2010. Moreover, the first medical documentation in the record regarding Complainant's medical restrictions is dated October 13, 2010, and in this documentation, Complainant's physician informed the Agency that Complainant was restricted from lifting more than 25 pounds/10 pounds repetitively and traveling more than once a month. The physician also recommended that a shortened work day and telecommuting be considered for Complainant.
Although the Agency was clearly aware of Complainant's cancer diagnosis since approximately March 2009, her need for specific accommodations was not obvious until her physician identified her restrictions in October 2010. When Complainant stated that she could no longer pack, travel, and lift because of her medical condition in August 2010, S1 asked Complainant to submit updated medical documentation so that she could evaluate Complainant's request for a restructuring of her job duties. Exhibit 11c. When an individual's disability or need for reasonable accommodation is not obvious, and the individual fails to provide reasonable documentation requested by the employer, the employer will not be held liable for failure to provide the requested accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002, Question 6 (rev. Oct. 17, 2002). Accordingly, when Complainant informed the Agency that she could no longer perform her job duties in the same manner as she formerly did, the Agency asked Complainant to submit medical documentation to substantiate her request, which we find to be reasonable in this case. Despite the Agency's request, Complainant failed to provide documentation linking her requests with her medical conditions until October 2010.
On November 9, 2010, S1 responded to Complainant's request for a reasonable accommodation and informed Complainant that she would no longer be required to lift anything that weighed more than 10 pounds; that Complainant was required to pack boxes, except for items weighing more than 10 pounds; that beginning on November 1, 2010, through January 31, 2011, Complainant would not be required to travel; that beginning February 1, 2011, Complainant could be required to travel a maximum of once per month; that Complainant was permitted to telecommute from home one fixed eight-hour day per week; and that Complainant would remain on a Gliding Work Schedule with the opportunity to work in a part-time status.
Additionally, the Agency suspended Complainant's travel plans from October 2010 through February 2011. Moreover, Complainant only traveled once from August 2010 through March 2011. On March 2, 2011, the Agency permitted Complainant to telecommute from home an additional eight-hour day, thereby affording Complainant with a total of two days per week to telecommute from home. We note that on March 15, 2011, Complainant accepted the reasonable accommodations proposed by S1, and S1's proposed job duties for Complainant were within Complainant's medical restrictions. Exhibit 11p, p. 1. Thus, we find that the Agency provided Complainant with a reasonable accommodation with the aforementioned actions, and Complainant failed to prove that the Agency denied her a reasonable accommodation.
CONCLUSION
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 decision for the reasons set forth in this decision.
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
November 30, 2012
Date
1 We note that the Agency referred to Complainant's complaint as Agency No. 10-07 throughout most of the record but referred to it as Agency No. 10-08 in its final decision.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120122360
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122360