Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120132617 Agency No. 1K-234-0014-11 DECISION On June 24, 2013, Complainant filed an appeal from the Agency's May 20, 2013, final decision 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). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full Time Mail Processing Clerk at the Agency's Processing and Distribution Center in Norfolk, Virginia. Prior to the events at issue, Complainant was working as a mail processing clerk with duty hours from 10 a.m. to 6:30 p.m. and days off on Wednesdays and Thursdays. On October 31, 2010, Complainant took an extended medical leave from work due to symptoms he was experiencing from his medical condition, diagnosed as Post Traumatic Stress Disorder (PTSD). Complainant subsequently presented the Agency with documentation from his physician indicating that he was released to return to duty as of the end of January 2011. Around the same time, on January 31, 2011, Complainant submitted a written reasonable accommodation request to the Agency's Occupational Health Nurse Administrator with medical documentation indicating that Complainant's duty hours needed to be restricted to the daytime (between 6:00 a.m. and 7:30 p.m.). The medical documentation further indicated that the duration of this limitation was estimated to last for one to two years before a reevaluation of Complainant's condition. In his accommodation request, Complainant further asked that he be placed into his former supervisor position at the Agency's Milan Station. If that position was not available, Complainant asked to be given the processing clerk position he held prior to his medical leave which had accommodated his medical condition. Based on Complainant's request, the District Reasonable Accommodation Committee (DRAC) met with Complainant on March 8, 2011. During the meeting, Complainant stated that he could perform all the functions of the mail processing clerk position so long as the work was available for the daytime hours between 6:00 a.m. and 7:30 p.m. During this meeting, the DRAC apparently suggested that Complainant request temporary light duty from the Plant Manager. It appears that subsequently, Complainant made such a request to the Plant Manager, because he returned to work on March 22, 2011, to light duty but was only scheduled to work for four hours per shift (from 3:30 p.m. to 7:30 p.m.) By letter dated April 6, 2010, the chairperson of the DRAC wrote Complainant, essentially indicating that because he did not need any accommodation to actually perform the essential functions of his position, the DRAC was "closing" its consideration of Complainant's request. Complainant's attorney (Attorney) at that time responded by letter on April 15, 2011. The Attorney asked that the DRAC not close the matter and renewed Complainant's request for reassignment to a permanent full-time position with the required daytime hours. In June 2011, the Attorney contacted the DRAC again, noting that Complainant had only been provided with a temporary light duty assignment which provided only four hours of work a day, not the eight to which he was entitled. As such, the Attorney asserted that the reassignment was not an effective accommodation. The Attorney also requested assistance in identifying other vacant, funded positions to which Complainant could be reassigned with full-time hours on the day shift. During this time, Complainant contacted the EEO Counselor. On May 16, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability and reprisal for prior protected EEO activity1 when, starting on April 6, 2011, his request for reasonable accommodation (full-time work with daytime hours) was denied. 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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.2 This appeal followed without specific comment. 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"). There is no doubt that the federal government, including the Agency, is charged with being a "model employer" of individuals with disabilities. See 29 C.F.R. § 1614.203(a). Inherent in this duty is an obligation to break down artificial barriers which preclude individuals with disabilities from participating on an equal footing in the work force. Accordingly, the Rehabilitation Act requires federal agencies to make various types of "reasonable accommodation" for federal employees who have disabilities. This requirement helps ensure that such federal employees will be able to perform the essential functions of their positions, and enjoy all the benefits and privileges of employment enjoyed by non-disabled employees. See Appendix to Part 1630 - Interpretive Guidance on Title I of the Americans with Disabilities Act ("Appendix to Part 1630"), at Section 1630.2(o): Reasonable Accommodation. Compliance with this duty to provide reasonable accommodation is itself a form of non-discrimination. See Id. at Section 1630.9: Not Making Reasonable Accommodation. Consequently, this Commission's regulations provide that: [i]t is unlawful for a covered entity [such as the agency] not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business .... [In addition] [i]t is unlawful for a covered entity [like the agency] to deny employment opportunities to an otherwise qualified job applicant or employee with a disability based on the need of such covered entity to make reasonable accommodation to such individual's physical or mental impairments. 29 C.F.R. §§ 1630.9(a), (b) [emphasis added]; see also 42 U.S.C. §§ 12112(b)(5)(A), (B) (containing the statutory directive mandating reasonable accommodation for "otherwise qualified individual[s] with a disability"). We note that in its final decision, the Agency specifically found that the evidence of record established that Complainant was an otherwise qualified individual with a disability within the meaning of the Rehabilitation Act. Thus, absent "undue hardship," an employer must provide reasonable accommodation for the physical or mental limitations of an employee (or applicant for employment) if the employee (or applicant) is an "individual with a disability" who is "otherwise qualified." See 29 C.F.R. § 1630.2(g). An individual with a disability will be "otherwise qualified," in turn, if "he or she satisfies all the skill, experience, education and other job-related selection criteria" - in other words, "if he or she is qualified for [the] job, except that, because of the disability [at issue], he or she needs a reasonable accommodation to be able to perform the job's essential functions." Appendix to Part 1630, at Section 1630.9: Not Making Reasonable Accommodation. In essence, we find that a fair reading of the Agency's position in this case is that it did not unlawfully deny Complainant's reasonable accommodation request because he was not requesting an accommodation that would allow him to perform the essential functions of his position. Rather, the Agency points out that Complainant concedes, and the evidence establishes, that he had no medical restrictions that prohibited him from performing his actual job. Rather, his request went to the time of day he could perform those functions as he requested that he be provided with full-time work (8 hours per day) between the hours of 6:00 a.m. and 7:30 p.m. As a result of its view of Complainant's request, the DRAC "closed" the matter. However, we find that the Agency's view that Complainant was not making a viable reasonable accommodation request that it needed to consider and decide was improper. EEOC's regulations provide that "[i]n general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." Appendix to Part 1630, at Section 1630.2(o): Reasonable Accommodation. Any reasonable accommodation "should provide the qualified individual with a disability with an equal employment opportunity" - meaning "an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment as are available to the average similarly situated employee without a disability." Id. at Section 1630.9: Not Making Reasonable Accommodation. Accordingly, appropriate accommodations might include job restructuring, reassignment to a vacant position, acquisition or modifications of equipment or devices, appropriate adjustment or modification of examinations, training materials, or policies, the provision of qualified readers or interpreters, and/or part-time or modified work schedules. See 29 C.F.R. § 1630.2(o)(ii); cf. Appendix to Part 1630, at Section 1630.9: Not Making Reasonable Accommodation (noting that the very "reasonable accommodation requirement is best understood as a means by which barriers to the equal employment opportunity of an individual with a disability are removed or alleviated," and that such barriers "may be rigid work schedules that permit no flexibility as to when work is performed ..."). See Court v. U.S. Postal Service, EEOC Appeal No. 07A10114 (May 15, 2003) (upholding the EEOC Administrative Judge's finding that cutting Complainant's hours by 75% was not an effective accommodation); see also Palfy v. U.S. Postal Service, EEOC Appeal Nos. 07A10087 and 01993950 (June 17, 2002) (finding that the Agency unlawfully failed to provide reasonable accommodation by refusing to allow the complainant to remain working during the day shift - despite evidence that this "particular shift ... was the only accommodation that was effective and did not aggravate his condition"). An employer does not have to provide a reasonable accommodation that would cause an "undue hardship" to the employer. Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. A determination of undue hardship should be based on several factors, including: • the nature and cost of the accommodation needed; • the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; • the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); • the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; • the impact of the accommodation on the operation of the facility. In the case at hand, Complainant provided medical documentation indicating that he could work during the day time hours between 6:00 a.m. and 7:30 p.m. The DRAC and Complainant agreed that he could otherwise perform the duties of his prior clerk position and perhaps many other positions at the Agency. Complainant's only medical limitation was the hours he could work and he provided a 121/2-hour window for which he could work 8 hours. Complainant and the Attorney gave the DRAC a variety of positions from his former supervisory position, his prior assignment as a mail processing clerk, and even custodial positions. They also noted that Complainant would take positions in Norfolk, Virginia or other locations in the Hampton Roads and Richmond areas. Complainant's Attorney also asked the DRAC for assistance in identifying even other positions to which Complainant could be assigned. However, in response, the DRAC merely administratively closed Complainant's request. There is no indication that they considered the merits of Complainant's accommodation request or offered any alternatives. Instead, the Agency seems to rely on the temporary light duty position provided by the Plant Manager which only gave Complainant with four hours of work each shift. The record contains scant evidence about this position or why it was limited to four hours. Based on these facts, we find that the Agency has not proven that providing Complainant work during the daylight hours could have caused an undue hardship at its facilities located in the Norfolk, Hampton Roads, and Richmond areas. Therefore, we conclude that the Agency failed to show that accommodating Complainant's work schedule would cause an undue hardship. See Petitioner v. Dep't. of Homeland Security, EEOC Petition No. 0320110053 (July 10, 2014) (differing with the Merit Systems Protection Board and finding that the Agency failed to show undue hardship when it failed to accommodate Petitioner's request to work during the daytime constituted a violation of the Rehabilitation Act); adopted by Alvara v. Dep't of Homeland Security, 121 M.S.P.R. 613 (2014). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision finding no discrimination and REMAND the matter in accordance with the ORDER below. ORDER (D0610) The Agency is ordered to take the following remedial action: 1. Agency shall provide Complainant with a full-time position to which he can be reassigned with hours during the daytime. 2. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The backpay period shall begin when Complainant returned to work in March 2011, but was not provided with a fulltime position. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of his claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. § 1614.110. 4. The Agency is directed to conduct training for the members of the DRAC who were found to have violated the Rehabilitation Act. The Agency shall address the Agency's responsibilities with respect to reasonable accommodation requests. 5. The Agency shall complete all of the above actions within 120 calendar days from the date on which the decision becomes final. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of backpay and other benefits due Complainant, including evidence that the corrective action has been implemented. INTERIM RELIEF (F0610) When the Agency requests reconsideration and the case involves a finding of discrimination regarding a removal, separation, or suspension continuing beyond the date of the request for reconsideration, and when the decision orders retroactive restoration, the Agency shall comply with the decision to the extent of the temporary or conditional restoration of the Complainant to duty status in the position specified by the Commission, pending the outcome of the Agency request for reconsideration. See 29 C.F.R. § 1614.502(b). The Agency shall notify the Commission and the Complainant in writing at the same time it requests reconsideration that the relief it provides is temporary or conditional and, if applicable, that it will delay the payment of any amounts owed but will pay interest from the date of the original appellate decision until payment is made. Failure of the Agency to provide notification will result in the dismissal of the Agency's request. See 29 C.F.R. § 1614.502(b)(3). POSTING ORDER (G0914) The Agency is ordered to post at its Processing and Distribution Center in Norfolk, Virginia, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. MPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter thetime limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations August 11, 2015 __________________ Date 1 In support of his retaliation claim, Complainant alleged that he had filed a prior EEO complaint when he was not selected for a Labor Relations position. The chairperson of the DRAC was the selectee for that position. Complainant further alleged that a hearing was scheduled in that previous complaint and the Agency was informed, in January 2011, that it should produce the chairperson of the DRAC as a witness. 2 The Agency also procedurally dismissed the complaint for failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). As the Agency conducted an investigation and addressed the complaint on the merits, we decline to address this alternative procedural dismissal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132617 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120132617