Bryan R., Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency. Appeal No. 0120130020 Hearing No. 510-2011-00417X Agency No. 1H336001811 DECISION On July 26, 2012, Complainant filed an appeal from the Agency's June 28, 2012, final order concerning his 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Tampa Processing and Distribution Center in Tampa, Florida. Complainant was hired by the Agency to work as a Mail Carrier in 2004, and he filed for disability retirement in or around May 2011. During the course of his employment, he filed several EEO complaints alleging disability and reprisal. The Commission considered the full record of these related cases while adjudicating the instant appeal. Complainant suffers from chronic Sarcoidosis1, which causes eye problems, lung inflammation and difficulty walking up stairs, or any inclined surface. Complainant's Sarcoidosis "flares up" sporadically, which causes migraine headaches, blurry vision, redness and pain in both eyes ("uveitis"). Prior to his hire, the Agency required Complainant to see an Agency physician because he suffered from a 70% service connected physical impairment, and the Agency wanted to insure he was able to perform the responsibilities of letter carrier. Agency doctors found Complainant fit for duty and he initially began working with the Agency in 2004 as a Mail Carrier. Within ninety days, however, Complainant resigned from employment as a letter carrier "because of the walking." In 2005, the Agency rehired Complainant to work as a Mail Handler, where he worked at the time of these complaints. Complainant had no work restrictions, but in January 2010, applied for Family Medical Leave Act (FMLA) leave when he suffered from intermittent flare ups of his sarcoidosis. By September 2010, Complainant had used all 12 weeks of FMLA leave. Between the end of Complainant's allotted FMLA in September and November 2010, Complainant incurred an additional 31.41 hours of unscheduled leave. On November 12, 2010, the Agency conducted an investigative interview with Complainant for his continued unscheduled absences. On December 7, 2010, Complainant was issued a Letter of Warning for unsatisfactory attendance. Complainant incurred additional unscheduled absences and in May 2011, he applied for disability retirement.2 On January 3, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him and failed to accommodate him on the bases of disability (Sarcoidosis) and reprisal for prior protected EEO activity when: 1. On or about November 12, 2010 and December 5, 2010, the Agency subjected him to a pre-disciplinary interview; 2. On or about December 10, 2010, the Agency issued Complainant a letter of warning ("LOW") for unexcused absences. 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 on April 19, 2012, and issued a decision on June 20, 2012. In her decision, the AJ found that Complainant established he was an individual with a disability because during a "flare up" of his Sarcoidosis, he was substantially limited his ability to walk and perform daily tasks without pain. The AJ also found that when his FMLA leave was depleted, Complainant informed management that he still required leave as an accommodation of his disability. The AJ found evidence in the record that established that a management official who was also the liaison with the District Reasonable Accommodation Committee (DRAC), testified at the hearing that she did not interpret a leave request as an accommodation request. Accordingly, the AJ found the Agency failed to engage in the interactive process with Complainant. However, the AJ also found that even if the Agency had engaged in the interactive process, the parties would not have found an accommodation which would have enabled Complainant to perform the essential functions of his job. The AJ noted Complainant's physicians placed no work restrictions on Complainant. Complainant's only restriction was that he could not work during a "flare up." The AJ found that Complainants request, specifically, to have four-six unscheduled absences per month, was not a reasonable request. As for his claim of retaliation, the AJ found no evidence of a prima facie case, in that Complainant's prior EEO activity occurred a year prior to the events in question herein, and involved different supervisors. Even assuming that Complainant did present evidence of an inference of retaliation, Complainant failed to prove that the Agency's reasons for its actions were a pretext for discrimination. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant states the AJ erred when she found no accommodation would have enabled Complainant to perform the essential functions of the job, because this finding was speculative and not based on any evidence. Complainant noted that management admitted at the hearing that it would find Complainant alternative assignments when he was at work and not feeling well. Therefore, Complainant asserts that it could have accommodated Complainant if it had engaged in the interactive process. Complainant contends that the Agency failed to prove that providing excused absences following the depletion of FMLA was an undue hardship on the Agency. Complainant contends that other employees have taken more leave and not been disciplined. In response, the Agency asserts that it continually asked Complainant for appropriate medical documentation to support his disability, but Complainant did not comply. Moreover, it claims that it did attempt to help Complainant with his assignments; however, it was not required to excuse Complainant's excessive and unpredictable absences. Accordingly, the Agency maintains Complainant is not a qualified individual with a disability, and not entitled to an accommodation. 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). After a review of the record, we find the AJ's decision is supported by substantial evidence in the record. The gravamen of the instant complaint is that Complainant was denied an accommodation for his disability; namely, that he not be disciplined for his unscheduled absences. The AJ found the Agency failed to engage in the interactive process, but its failure was harmless as there was no reasonable accommodation which could have allowed Complainant to perform the essential functions of his job. A reasonable accommodation is an adjustment or change at work for a reason related to a medical condition. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 1 (Oct. 17, 2002). When an individual's disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his disability and functional limitations. Id. at Question 6. The employer is entitled to know that the individual has a covered disability for which he needs a reasonable accommodation Id. Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has a disability within the meaning of the Rehabilitation Act and that the disability necessitates a reasonable accommodation. Id. If an individual's disability or need for accommodation is not obvious, and he refuses to provide the reasonable documentation requested by the employer, then he is not entitled to reasonable accommodation. Id. After a review of the record, we find both parties bear responsibility for the breakdown of the interactive process. Complainant depleted his FMLA leave from January to September 2010, and then continued to require unscheduled absences. Following his return from an absence, Complainant only provided his supervisor with doctor's notes justifying the absence. They state: "[Complainant] was seen in the eye clinic." (ROI at p. 113) or "[Complainant] was seen at Bay Pines VA Clinic." (ROI at p. 119). The record reveals that Complainant's supervisors requested that Complainant provide medical documentation to support his disability, not simply his absence on the day in question. (HT 119). Testimony also revealed that when Complainant was advised to provide further documentation, he became "belligerent." (HT at p. 135). The AJ credited the testimony of management officials who testified that Complainant was directed to speak with the DRAC liaison and provide her with documentation of his disability. (HT 119-122, 146, 188). Although Complainant denies that this occurred, the AJ credited the Agency's witnesses that he was in fact informed. The AJ found no evidence that Complainant provided her with evidence of his disability at this time, and we find no evidence in the record that reveals Complainant provided documentation establishing he had a disability at this point in time. Accordingly, we find no reason to overturn the AJ's finding that Complainant was directed to provide medical documentation supporting his disability, but failed to do so. Complainant also testified that when he was subject to the investigative interview, he did inform the Agency of his need for an accommodation in the form of leave. However, in light of Complainant's failure to provide documentation explaining his disability, which was not obvious, he was not entitled to an accommodation. The Agency appropriately required written documentation that established Complainant had a disability (not only that he was at a doctor's appointment), and when he failed to provide it, the Agency issued disciplinary action according to its policies. Complainant asserts that the AJ erred in finding that even if the Agency had engaged in the interactive process, there was no accommodation available to Complainant. We disagree and find that even if we were to assume that Complainant was entitled to an accommodation, we find he failed to identify one which would not cause an undue hardship on the Agency. During the hearing, Complainant testified that he required four to six unscheduled absences per month. The record reveals the Agency had previously provided Complainant with over 400 hours of leave pursuant to his rights under the Family and Medical Leave Act. Furthermore, the Agency was having financial problems and its busiest season was quickly approaching, so Complainant's unpredictable leave required the Agency to use overtime. (HT 149-151). Furthermore, it could not replace Complainant until the position was vacant. (HT at p. 129). Although Complainant asserts he could have been accommodated had the Agency engaged in the interactive process, we find he failed to request or identify any other accommodation which could have enabled him to perform the essential functions of the job. We note that a policy of limiting leave as an accommodation to only what is permitted under FMLA would not be appropriate. Here, the Agency continued to excuse Complainant for a period of time after the depletion of his FMLA, but then determined that permitting Complainant continued unscheduled absences at the rate that he required would impose an undue hardship on its operations. Under the facts of this particular case, we find no error in the AJ's finding. As for his claim of retaliation, we find he failed to establish, more likely than not, that the Agency's reasons for issuing the discipline were 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 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 3/20/15 __________________ Date 1 Sarcoidosis (sahr-koi-DO-sis) is characterized by the development and growth of tiny clumps of inflammatory cells in different areas of your body - most commonly the lungs, lymph nodes, eyes and skin. Doctors believe sarcoidosis results from an abnormal immune response - most likely to something inhaled from the air- but just what triggers this response isn't known. The course of sarcoidosis is variable from person to person. Often, it goes away on its own, but in some people signs and symptoms of sarcoidosis may last a lifetime. MayoClinic. com. 2 Complainant's absences from work during this time due to flare ups resulted in investigative interviews and disciplinary actions, which were the subject of other EEO complaints. In one complaint, Complainant was successful in proving retaliation. See Gary v. USPS, EEOC Appeal No. 0120122504 (October 24, 2012)(Agency No. 1G-336-0001-12) (OFO finding of retaliation when the Agency issued Complainant discipline in September 2011 even though he brought in sufficient medical documentation and was on an excused absence awaiting the approval of his disability retirement application). Another complaint (Agency No. 1G-336-0040-12) addressed whether the Agency discriminated against Complainant when it issued him discipline in April 2012. See Gary v. USPS, EEOC Appeal No. 0120131091 (pending decision). See also, Gary v. USPS, EEOC Appeal No. 0120132114 (pending appeal addressing claim for compensatory damages following the finding of discrimination). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2013-0020 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120130020