0120102610
02-02-2012
Valerie H. Dash, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Valerie H. Dash,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 01-2010-2610
Agency No. IRS090713F
DECISION
On June 1, 2010, Complainant filed an appeal from the Agency's April 23, 2010, 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). 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 Tax Examining Technician at the Agency's Tallahassee facility in Tallahassee, Florida. Previously, Complainant worked in Philadelphia, Pennsylvania. She relocated to Florida in September 2006.
On August 3, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (cervical and ulnar neuropathy) when:
1. since August 2006, her request for an ergonomic chair as a reasonable accommodation has been denied; and
2. from June 1, 2009, she was charged with AWOL and threatened with termination.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the Agency found that Complainant failed to respond to the Investigator's request for a declaration. It did note, however, that the record revealed that in August 2006, Complainant requested an ergonomic chair from her First Level Manager, and in early 2007, the chair was provided. However, Complainant was dissatisfied with the chair, and gave it to another employee. In February or March 2008, Complainant informed the Territory Manager that she was given a chair, but gave it away to another employee because it was not what she needed. The Agency found that the Territory Manager asked Complainant what she needed, and asked her to submit further information, but Complainant neglected to do so. Instead, the Territory Manager averred that Complainant informed her that she was fine with the cushion she was using.
The record contains a June 2008 prescription from Complainant's physician requesting the same ergonomic chair as had already been provided. A reasonable accommodation request was initiated, but then closed out when it was determined Complainant had already received the chair. The AJ found that on October 3, 2008, Complainant withdrew her June 2008 reasonable accommodation request, and used sick leave, annual leave, and Leave Without Pay from October 3, 2008 until April 25, 2009.
In March, June, and August 2009, the Territory Manager issued Complainant letters requesting medical documentation supporting her continued absence. The letters advised that the failure to submit medical documentation supporting further absences may lead to Absence Without Official Leave (AWOL) charges. In September 2009, Complainant declined a limited duty offer.
The Agency found Complainant failed to show she was denied a reasonable accommodation. Further, the Agency found Complainant failed to show that it had legitimate, nondiscriminatory reasons for issuing Complainant the letters, and Complainant failed to prove those reasons were a pretext to discriminate against her. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant states that she mailed in her declaration responses to the Investigator, and attaches copies on appeal. She states the chair she received in 2007 was not appropriate, and so she let another employee use it. She states that she expected her supervisors to check on her to see how to she was doing with the chair, but they did not. Complainant denies that she informed her Territory Manager that the cushion was sufficient, and claims she did in fact submit the appropriate prescription for a new chair. She also claims she was subjected to retaliation for Whistle blowing.
In response, the agency maintains that Complainant was accommodated because she was provided a chair, but gave it to someone else and did not inform her supervisor that it was deficient. When Complainant spoke with the Territory Manager, she declined further assistance and refused to bring in documentation. In June 2008, Complainant provided a new prescription, but it was for the same chair that she found deficient. That request was later withdrawn when she requested LWOP. The Agency found that Complainant is not entitled to the accommodation of her choice, and that she failed to engage in the interactive process with the agency. Accordingly, it cannot be held liable for any failure to accommodate.
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 Chapter 9, � VI.A. (November 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").
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship, 29 C.F.R. �� I630.2(o) and (p). Here, we assume, without so finding, that Complainant is an individual with a disability, we decline to find that management failed to meet its obligations to reasonably accommodate Complainant pursuant to the Rehabilitation Act.
The record reveals Complainant was provided with a chair in her prior work location, but failed to mark it for shipping when she relocated to Florida. When she arrived in Florida, she was provided with another chair, and we are not persuaded she put the agency on notice that the chair was deficient in some way. The preponderance of the evidence in the record supports the agency's finding that Complainant gave the chair to someone else, did not complain about the chair, but rather, indicated that the use of a pillow was sufficient. Accordingly, we find the agency did in fact provide an accommodation for Complainant's disability.
Complainant contends she was subjected to disparate treatment when she was issued letters requesting medical documentation which supported her long term absence from work. Commission policy holds that an employer that requests additional information based on a good faith belief that the documentation the employee submitted is insufficient is not liable for discrimination. EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), response to question 11, (July 27, 2000) (available at www.eeoc.gov). We find the agency's reasons for requesting the information was legitimate, and Complainant failed to prove that reason was a pretext for discrimination.
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 order.
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
2/2/12
Date
2
01-2010-2610
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102610