U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Pamala L,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120152493 Hearing No. 430-2014-00055X Agency No. 4K230019513 DECISION On July 15, 2015, Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's June 17, 2015, final order (FAD) 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. For the following reasons, the Agency's FAD which fully implemented an AJ's grant of summary judgment in favor of the Agency, finding that Complainant did not prove that she was denied a reasonable accommodation, is REVERSED. The complaint is REMANDED for compliance. ISSUES PRESENTED Did the Agency correctly adopt the AJ's summary judgment decision finding that Complainant did not prove by a preponderance of the evidence that she was denied reasonable accommodation for her disability? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Post Office in Crewe, Virginia. Report of Investigation (ROI), p. 11. Complainant had previously suffered a work-related injury caused by a motor vehicle accident in 2003. Id. Complainant was given a modified assignment in May 2013 as a Mail Processing Clerk as a result of her medical restrictions. ROI, p. 11-12. Complainant's duties as a Mail Processing Clerk involved: (1) measuring, recording, and sorting letter and package mail; (2) scanning accountables and distribution/collection barcodes; (3) changing locks and labels on Post Office boxes; and (4) labeling tubs, trays and cages for dispatch. ROI, p. 146. On July 12, 2013, Complainant submitted a written request for the following reasonable accommodations:an ergonomic chair, modification to the counter where Complainant worked to allow the chair to fit; and a continuous 8-hour shift with a break not to exceed 30 minutes. ROI, p. 11. Complainant submitted medical documentation stating that she had a permanent spinal condition (chronic discogenic and vertebrogenic problems), and that she had permanent medical restrictions as a result of her condition. ROI, p. 35-37. The Agency referred the reasonable accommodation request to its District Reasonable Accommodation Committee (DRAC), which refused to grant the reasonable accommodations after Complainant's doctor did not complete a medical information form, called Form 2-B, seeking information concerning Complainant's medical condition and restrictions. ROI, p. 170-172. Complainant submitted a form which DRAC asked her to complete herself and signed a medical release allowing DRAC to contact her medical provider if further information was required to process her accommodation request. ROI, p. 151, 173-175; see also, AJ Decision, p. 3.2 Complainant informed the member of DRAC designated to receive her paperwork that her doctor wanted $400 to complete the form. ROI, p. 41. DRAC closed Complainant's file after it did not receive the Form 2-B from Complainant's doctor. On September 3, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (lumbar strain/sprain, lumbar herniated nucleus pulposus and lumbar degenerative disc disease) when on July 11, 2013, management denied her request for accommodations ncluding modifying the front counter, provision of an ergonomic chair, and for Complainant to work a continuous 8-hour shift. At the conclusion of the investigation into the allegations, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for summary judgment and issued a decision on summary judgment on May 27, 2015. The Agency subsequently issued a FAD adopting the AJ's finding that Complainant did not prove that the Agency denied her reasonable accommodation. CONTENTIONS ON APPEAL I. Complainant's Contentions On Appeal Complainant contends that she suffered a work-related injury which rendered her disabled and that she submitted medical documentation and a request for the reasonable accommodations of a continuous shift, ergonomic chair and a modification to the front counter where she worked to allow for the chair to fit. Complainant contends that the Agency denied the accommodation even after she submitted documentation showing need for the accommodations. II. Agency's Contentions On Appeal The Agency contends that the AJ was correct to issue a decision on summary judgment finding that Complainant was not denied a reasonable accommodation. The Agency contends that Complainant's failure to submit medical documentation from her medical provider inhibited its ability to engage in the interactive process to determine the need for the accommodations Complainant requested. STANDARD OF REVIEW The AJ's legal and factual conclusions, and the Agency's final order adopting them, are reviewed de novo. See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). ANALYSIS AND FINDINGS The Agency fully implemented the AJ's finding issued on summary judgment that Complainant did not prove that she was denied reasonable accommodation. An AJ may issue a decision without a hearing, summary judgment, when he or she finds that there are no genuine issues of material fact. 29 C.F.R. § 1614.109(g); Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. Anderson, 477 U.S. at 248. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Anderson, 477 U.S. at 255. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon determining that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Federal employers must "act affirmatively on behalf of disabled individuals." Rehabilitation Act of 1973, 29 U.S.C. § 791(b). A federal agency must "make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless the [agency] can demonstrate that the accommodation would impose an undue hardship on the operations of its business." 29 C.F.R. § 1630.9(a). In determining the appropriate reasonable accommodation, a federal agency may need to "initiate an informal, interactive process with the qualified individual with a disability in need of accommodation." 29 C.F.R. § 1630.2(o)(3). A federal agency is prohibited from asking for documentation where both the disability and the need for the accommodation are obvious or where the individual has already provided the employer with sufficient information to substantiate that she has an ADA disability and needs the reasonable accommodation requested. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, at question 6, (March 3, 1999). In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). Complainant is an individual with a disability because she has issues with her spine, lumbar strain/sprain, lumbar herniated nucleus pulposus and lumbar degenerative disc disease, which limit her in major life activities of sitting, standing, carrying, pushing and pulling. ROI, p. 10-11. Complainant attested that she could perform the essential functions of her position, which included sorting letter and package mail, with reasonable accommodation. ROI, p. 11. The AJ assumed that Complainant was an individual with a disability and that she was a qualified individual with a disability, which the Agency did not dispute. AJ Decision, p. 5-6. The next question is whether the Agency failed to provide Complainant with reasonable accommodations for her disability. Complainant requested accommodation in the form of modifications to the front counter where she worked, an ergonomic chair, and for her to be scheduled to work continuous 8-hour shifts with a break of no more than 30 minutes.3 Complainant had also previously requested that parcels be placed on a table rather than the floor so that she could retrieve them; Complainant does not dispute that the Agency was providing her with this accommodation. AJ Decision, p. 3. Along with a written request for accommodation, Complainant's attorney attached a 2005 letter from her doctor explaining that Complainant's "chronic discogenic and vertebrogenic" issues constituted a permanent condition rendering her restrictions long term. The doctor's letter also stated that Complainant was capable of working consecutive eight hours in a shift, but not a split shift, meaning that there should not be a long break in the middle of the shift. ROI, p. 36. Further, a CA-17 Office of Worker's Compensation Programs form dated March 2012 outlining Complainant's restrictions was also submitted along with the reasonable accommodation request. ROI, p. 35. The form reveals Complainant's exact lifting, sitting, standing, walking, pulling, pushing, grasping, reaching and driving restrictions. The doctor also stated that these were permanent restrictions on the form. ROI, p. 35. The documents submitted were enough to evaluate Complainant's need for a chair and modification of the front counter so that the chair could fit. These accommodations were a result of standing restrictions. Complainant's CA-17 form reveals she is limited to 4 hours per day, 30 minutes continuous, and one hour intermittent. Id. The letter from Complainant's doctor also extensively explained the nature of Complainant's lumbar impairment and the fact that the condition was permanent. Additionally, the letter from Complainant's doctor stated his opinion that Complainant was capable of working a continuous 8 hour shift rather than a split shift. ROI, p. 36. The Agency argued that neither the CA-17 or the 2005 letter established the need for the accommodations. However, these documents clearly establish the need through their exposition of Complainant's diagnosis and restrictions, and even if they did not, the form the Agency requested solicits the same information already expounded in these documents. The form requested information on what medical condition Complainant has, medical restrictions, estimated duration of the restrictions and how the medical condition impacts Complainant at work and outside of work. These were already expounded upon in the documents because the medical doctor recommended the continuous shift, and clearly stated that Complainant is affected in her sitting and standing as a result of a spinal impairment demonstrating the need for the ergonomic a chair and a counter for it to fit under. See, e.g., Monterroso v. Sullivan & Cromwell, 591 F.Supp.2d 567 (S.D.N.Y. Oct. 28, 2008) (reasoning that it was not a "terribly difficult logical leap" to conclude that the plaintiff could have been accommodated by not being exposed to certain irritants given the "detailed list of irritants" in a doctor's letter). Therefore, given that Complainant had already submitted medical documentation to substantiate her need for accommodation, the Agency was not entitled to ask for additional documentation on the same matters. Further, Complainant signed a medical release upon request from the Agency as part of the DRAC process, which specifically states that the DRAC could contact Complainant's doctor for further information about her medical needs. ROI, p. 151.4 The Agency therefore had within its possession a tool by which to clarify any remaining questions after Complainant informed them that her doctor was charging her to complete the Form 2B. Rather than following up with Complainant's doctor by virtue of the optional medical release Complainant signed, the Agency chose to deny the requested accommodations by closing the DRAC file. To the extent the Agency argues that the 2005 letter from Complainant's doctor was outdated, Complainant was engaged in an ongoing Office of Worker's Compensation Programs claim with the Agency after being injured in 2003, and was submitting medical documentation in the form of duty status CA-17 forms up to the point where she requested accommodation. The 2005 letter stated that Complainant's diagnosis and restrictions were ongoing and permanent, a fact which was recognized by Complainant encumbering a modified assignment. For example, a May 2009 offer of modified assignment to Complainant reveals the same restrictions she had at the time she requested accommodation. ROI, p. 81-82. Additionally, Complainant was submitting medical documentation related to her duty status to the Occupational Health Nurse Administrator who was also a member of DRAC designated to receive information regarding Complainant's accommodation request.5 Therefore, given the circumstances of this case where there was a history of Complainant's communication with the Agency regarding her medical condition and restrictions, the Agency was fully apprised of the permanent nature of the disability and restrictions, and it was incorrect to seek more documentation to accommodate Complainant's restrictions. See, e.g., Heard v. Dep't of Treasury, EEOC Appeal No. 0120110751 (Apr. 19, 2013) (finding that Complainant did not have to submit additional medical documentation for accommodation of a parking spot when Complainant's doctor had informed the Agency that Complainant's disability and restrictions were permanent). Complainant was not responsible for the breakdown of the interactive process. Therefore, the AJ was incorrect to issue a decision on summary judgment finding that Complainant was not denied reasonable accommodation. Genuine issues of material fact are not in dispute which require a hearing and Complainant proved by a preponderance of the evidence that she was denied reasonable accommodation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD which fully implemented an AJ's finding on summary judgment that Complainant was not denied reasonable accommodation is REVERSED. The complaint is REMANDED for further processing consistent with this decision and the Order below. ORDER (C0610) Within one hundred and twenty (120) calendar days from the date this decision is issued, the Agency is ordered to take the following remedial action to the extent it has not already done so: 1. Provide Complainant with accommodations of an ergonomic chair and modification to the front counter where she works consistent with use of the ergonomic chair, and a consecutive 8 hour work schedule; 2. The Agency shall conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages with respect to this complaint. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, if any, and will provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages with appeal rights to the Commission. A copy of the final decision must be submitted to the Compliance Officer as referenced below; 3. Provide training to the Agency personnel responsible for the discrimination, mainly the District Reasonable Accommodation Committee (DRAC), placing special emphasis on an employer's obligation to provide reasonable accommodation, the interactive process to arrive at a reasonable accommodation and employer best practices. Complainant's immediate supervisor at the time of the complaint should also be provided with training on reasonable accommodation. 4. The Agency shall consider taking appropriate disciplinary action against members of the District Reasonable Accommodation Committee (DRAC) responsible for the decision to close Complainant's case thereby denying the reasonable accommodation at issue in this complaint. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s); 5. Post copies of the notice discussed below. 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 verifying that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at the Crewe Post Office in Crewe, 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 was issued, 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) 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 the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 11-21-2017 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 The AJ's decision and Complainant indicate that Complainant signed a medical release. It is unclear why the Agency stated in its Motion for Summary Judgment that Complainant did not submit a medical release. 3 Complainant was apparently being scheduled to work two 4-hour blocks of time with approximately 1.5 hours of break time in between. 4 "I am also attaching a release form which would allow the Postal Service doctor to contact your physician regarding any relevant medical questions that arise during this process.Although you are not required to sign this release, it may speed up the process significantly." ROI, p. 151. 5 The investigation did not collect testimony of the Occupational Health Nurse Administrator despite the fact that the individual is identified in the case as someone having highly pertinent information regarding Complainant's medical documentation, request for accommodation and communication after the request for accommodation was submitted to DRAC. For example, according to the EEO Counselor's Report, the Chair of DRAC stated that "Counselee mentioned to...the Occupational Health Nurse Administrator, who would receive the 2B that her doctor asked for $400.00 to complete the form." ROI, p. 41. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2015-2493 2 0120152493