0320130032
10-02-2014
Petitioner, v. Anthony Foxx, Secretary, Department of Transportation, Agency.
Petitioner,
v.
Anthony Foxx,
Secretary,
Department of Transportation,
Agency.
Petition No. 0320130032
MSPB No. CB7121120013V1
DECISION
On June 20, 2013, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
ISSUE PRESENTED
The issue presented is whether the decision of the MSPB regarding Petitioner's allegation of disability discrimination constitutes a correct interpretation of any applicable law, rule, regulation, or policy directive, and is supported by the evidence in the record as a whole.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Management Analyst, GS-343-9, in Washington, D.C. Petitioner was removed from her position on October 14, 2010. Petitioner decided to grieve her removal under the negotiated grievance procedure. A hearing was held before an arbitrator. The arbitrator found that the Agency did not err in removing Petitioner. Further, the arbitrator found that Petitioner untimely raised an allegation that the Agency failed to provide her with a reasonable accommodation.
Petitioner appealed the arbitrator's decision to the MSPB. In her request for review, Petitioner reasserted her allegation that the Agency denied her request for a reasonable accommodation prior to her removal. Petitioner argued that the arbitrator erred in finding that her reasonable accommodation allegation was untimely and argued that the Agency failed to engage in the interactive process.
An MSPB AJ (AJ) reviewed the arbitrator's decision and on May 16, 2013, issued a decision finding that Petitioner failed to prove that the Agency denied her a reasonable accommodation. In so finding, the AJ found that even assuming Petitioner was an individual with a disability, the documents provided by Petitioner's physician to the Agency to support her request for an accommodation were insufficient. The AJ found that Petitioner provided two letters to her supervisor (S1). 1 S1 subsequently requested additional information for medical certification under the Family Medical Leave Act (FMLA). Petitioner responded by stating that she was requesting advanced leave and she would forward the request for more documentation to her attorney and physician. However, instead of doing so, the union submitted a demand to bargain, stating that the Agency violated the Rehabilitation Act when S1 requested additional medical documentation. Petitioner did not submit any additional documentation regarding her impairments.
The AJ found that Petitioner failed to establish a discrimination claim for failure to accommodate because she did not cooperate with S1's reasonable request for additional medical documentation. The AJ further determined that Petitioner's argument that the Agency failed to engage in the interactive process because S1 failed to respond to the union's request to bargain regarding the request for more documentation was without merit. The AJ noted that S1 requested additional documentation, even if in reference to the FMLA, and it was Petitioner's failure to comply that ended the process. The AJ noted that Petitioner did not submit "any argument or evidence how a reduced schedule or any other accommodation would have allowed her to perform in her position or in any other vacant position to which she could have been assigned." As such, the AJ found that Petitioner failed to establish that the Agency failed to provide her with an accommodation.
Petitioner makes no arguments on appeal. The Agency requests that the Commission concur with the findings of the AJ.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c). After a thorough review of the record, the Commission CONCURS with the final decision of the MSPB finding of no discrimination.
Under the Commission's regulations, an agency is required to make reasonable accommodations 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. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. Enforcement Guidance - Reasonable Accommodation. The Rehabilitation Act prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Petitioner was denied a reasonable accommodation, she must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation absent undue hardship. See Enforcement Guidance.
Assuming, arguendo, that Petitioner is a qualified individual with a disability, the record indicates that she did not provide sufficient medical documentation to support her request for a reasonable accommodation. The Commission has held that, if an individual's disability or need for reasonable accommodation is not obvious, and the person refuses to 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 (Feb. 16, 2012). Nothing in the record shows that management officials knew specifically of Petitioner's impairments. Additionally, we note that the documentation provided by Petitioner did not provide sufficient information to determine if an accommodation was warranted at the time of the request. Although additional information and documentation was requested of Petitioner, she did not provide it. As such, we find that Petitioner failed to demonstrate that the Agency denied her a reasonable accommodation.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__10/2/14________________
Date
1 The AJ noted that Petitioner's physician provided two letters. In one dated August 20, 2009, the physician stated that Petitioner was being treated for anxiety and depression. The physician requested that Petitioner "receive special accommodations and restoration of her leave immediately." In another letter dated August 24, 2009, Petitioner's physician stated requested that Petitioner "be allowed to work no more than three days a week for the next 30 days . . . ." The physician stated that Petitioner would need to be reevaluated at the end of 30 days and also requested that she be allowed to receive sick leave as part of the "company sick leave bank." The AJ noted that these documents and Petitioner's testimony regarding her impairments were the only "significant pieces of evidence" regarding Petitioner's medical condition.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0320130032
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320130032