U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carolyn M.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Petition No. 0320170025 MSPB No. DC-0752-12-0366-B-1 DECISION On January 18, 2017, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision 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. For the following reasons, we CONCUR with the MSPB's finding that Petitioner did not establish that the Agency discriminated against her as alleged. ISSUE PRESENTED The issue presented is whether the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish discrimination on the basis of disability (chronic knee condition) when the Agency placed her on enforced leave. BACKGROUND At the time of events giving rise to this matter, Petitioner worked as a Supervisor, Customer Services at the Agency's Denbigh Station in Newport News, Virginia. According to the position description, the Supervisor, Customer Services supervises a group of employees in the delivery, collection, and distribution of mail, and in window service activities within a post office, station or branch, or detached unit. Petitioner's chain of command included the Manager, Customer Services and the Postmaster. In September 2011, Petitioner utilized extended leave from her position for medical reasons. In December 2011, Petitioner requested to return to work and submitted to management a December 12, 2011, letter from her clinical social worker (D1). In the letter, D1 recommended that Petitioner return to work on January 6, 2012 "starting on a 4 - 6-hour schedule daily or as much as she is able to tolerate." On December 15, 2011, the Agency issued a letter to Petitioner instructing her to provide medical documentation showing her fitness for duty. Along with the letter, the Agency provided Petitioner with a light duty request form and a light duty medical certification for her medical provider to complete. On December 30, 2011, Petitioner submitted to management the light duty request form, the light duty medical certification, and other medical documentation. In the light duty request, Petitioner asked for a temporary assignment to a light duty position. In the light duty medical certification, dated December 30, 2011, Petitioner's primary care physician (D2) stated that Petitioner could return to work on January 6, 2012, with the following medical restrictions related to her chronic knee condition: two hours each of lifting/carrying up to 20 pounds, reaching/working above shoulders, walking, standing, sitting, and climbing steps or ladders; and no stooping/squatting, twisting from waist or knees, and bending repeatedly. In addition, D2 stated that Petitioner needed "frequent work breaks/rest from prolonged standing/walking one hour at a time up to 2 hrs" and no overtime. Subsequently, management disapproved Petitioner's light duty request, indicating that work within her medical restrictions was not available. The other medical documentation consisted of a December 30, 2011 letter from D1 and a December 27, 2011 progress note from a clinical psychologist (D3) whom Petitioner saw for pain management. On January 6, 2012, management issued Petitioner a notice of proposed placement on enforced leave. Specifically, management stated that, based on D2's December 30, 2012, light duty medical certification, Petitioner could not perform the essential functions of her position because of her medical restrictions. In addition, management stated that Petitioner would remain in an enforced leave status until she submitted documentation indicating that she was able to perform the essential functions of her position. From January 6-13, 2012, Petitioner and management corresponded in writing about her requested return to work. Specifically, Petitioner advised management that she did not necessarily need light duty, but just needed to be accommodated in her position in accordance with the medical restrictions listed in D2's December 30, 2011, light duty medical certification. In response, management offered to schedule a meeting to discuss her concerns. In reply, Petitioner indicated that she would be happy to meet with management to work towards a solution in accommodating her and asked management to contact her regarding scheduling. A meeting was scheduled for January 26, 2012. On January 21, 2012, the District Reasonable Accommodation Committee (DRAC) issued Petitioner a first request for medical information. Specifically, DRAC informed Petitioner that management had nominated her for consideration of whether accommodation of her medical condition was appropriate under the Rehabilitation Act. In addition, DRAC requested that Petitioner complete DRAC Form 2-A (employee information) within seven days of receipt of the letter and have her medical provider complete DRAC Form 2-B (medical information) within 14 days of receipt of the letter. In addition, DRAC informed Petitioner that, after it received the completed forms, it would contact her and may ask her to clarify some information and/or to attend a DRAC meeting. On or about January 23, 2012, Petitioner submitted to management a January 23, 2012, letter from D2 clarifying her medical restrictions. In the January 23, 2012, letter, D2 stated that Petitioner "does not need light duty work since there is no position available" and could work in her supervisory position if she had frequent work breaks, rest from prolonged standing and walking, and no overtime. In addition, D2 stated that Petitioner could still perform certain tasks (such as lifting/carrying up to 20 pounds, walking, standing, climbing steps or ladders, and sitting) over a regular eight-hour workday, not to exceed two hours per each individual activity. Moreover, D2 stated that he had not been "getting any consultant notes from [Petitioner]'s last orthopedic doctor and pain management specialist about her current treatment regimen[] and future treatment recommendations." On January 26, 2012, Petitioner met with management as scheduled to discuss her requested return to work. On January 30, 2012, Petitioner submitted to DRAC the following medical documentation: DRAC Form 2-A, the December 30, 2011, light duty medical certification from D2, and the January 23, 2012, clarification letter from D2. On February 6, 2012, management issued a letter of decision upholding Petitioner's placement on enforced leave, effective February 8, 2012. The letter stated that Petitioner had been nominated to DRAC and encouraged her to participate in the DRAC process. On or about March 13, 2012, DRAC requested additional medical information from Petitioner. On March 20, 2012, Petitioner submitted to DRAC a letter requesting an extension of time to submit the medical documentation, stating that she had to get in touch with three medical providers: D2, D3, and her orthopedic surgeon (D4). On March 28, 2012, Petitioner submitted to DRAC the following medical documentation: DRAC Form 2-B, an updated light duty medical certification, and a Department of Labor (DOL) Form WH-380-E (certification of health care provider for employee's serious health condition). The medical documentation was all from D2 and was dated March 21, 2012. In a cover letter accompanying the medical documentation, Petitioner stated that the documentation was "revising and further clarifying" her medical restrictions. In DRAC Form 2-B, D2 stated that Petitioner's medical restrictions included lifting/carrying up 20 pounds and minimizing overtime. In addition, D2 stated that Petitioner could "perform all tasks up to 2 hours each with frequent work breaks." In the updated light duty medical certification, D2 stated that Petitioner could lift/carry up to 20 pounds and could do the following activities for two hours per activity: stooping/squatting, twisting from waist or knees, reaching/working above shoulders, walking, standing, sitting, bending repeatedly, and climbing steps or ladders. In addition, D2 indicated that Petitioner needed frequent rest breaks and should minimize overtime. In DOL Form WH-380-E, D2 stated that Petitioner needed "frequent work breaks/rest from prolonged standing/walking/sitting (10-15 mins, every hour)" and to minimize overtime. On April 20, 2012, Petitioner submitted to DRAC the following medical documentation: the previously submitted March 21, 2012, DRAC Form 2-B from D2, a new April 18, 2012, DRAC Form 2-B from D3, and a new April 18, 2012, DRAC Form 2-B from D4. In DRAC Form 2-B, D3 stated that Petitioner could perform the traditional duties of a supervisor, but should minimize overtime, was limited from walking long distances, and was somewhat limited in her ability to perform activities that involved frequent changes of position. In DRAC Form 2-B, D4 stated that Petitioner needed to stretch her knees if sitting, was unable to sit for one to two hours before stretching, was unable to walk for more than one hour before needing to sit, and would benefit from frequent change of activity. In addition, D4 stated that Petitioner could perform all the requirements of her position (except for route inspections) and, because the supervisor position typically alternated between walking, standing, and sitting, she could work an eight-hour day with minimal overtime. On May 22, 2012, Petitioner attended a telephonic DRAC meeting. Following the meeting, DRAC was notified that the Office of Personnel Management had granted Petitioner's application for disability retirement, effective June 4, 2012. DRAC stopped its process. MSPB Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her on the basis of disability (chronic knee condition) when it placed her on enforced leave. On March 22, 2016, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision affirming the enforced leave and finding no disability discrimination. In affirming the enforced leave, the MSPB AJ found that the Agency proved by preponderant evidence its charge that Petitioner was unable to perform the essential functions of her position due to her medical restrictions. Specifically, the MSPB AJ found that management placed Petitioner on enforced leave because she could not work an eight-hour day. In so finding, the MSPB AJ cited management's testimony that: (1) Petitioner occupied a full-time position that required her to work an eight-hour day, (2) D2's December 30, 2011, light duty medical certification restricted Petitioner to two hours each of walking, standing, and sitting; and (3) Petitioner's supervisory duties and all the other activities permitted by D2's December 30, 2011, light duty certification (such as lifting/carrying up to 20 pounds, reaching/working above shoulders, climbing steps or ladders) had to be performed while walking, standing, and sitting, so Petitioner was limited to working a six-hour day. In addition, although Petitioner argued that management's interpretation of her medical restrictions was erroneous, the MSPB AJ found that management's interpretation was reasonable and was supported by documentary evidence. In finding no disability discrimination, the MSPB AJ analyzed Petitioner's claim under a denial of reasonable accommodation framework. Specifically, the MSPB AJ found that, assuming Petitioner was a qualified individual with a disability and there were reasonable accommodations available, the Agency engaged in an interactive process in an attempt to find a reasonable accommodation for her. In so finding, the MSPB AJ cited the following timeline: on January 21, 2012, Petitioner was referred to DRAC; from January 21-April 20, 2012, DRAC requested medical documentation from Petitioner and Petitioner submitted medical documentation to DRAC; and on May 22, 2012, after DRAC received all of Petitioner's medical documentation, Petitioner attended a telephonic DRAC meeting. In addition, the MSPB AJ cited the DRAC Chairperson's testimony (C1) that DRAC never sent Petitioner a formal letter addressing her accommodation request after the May 22, 2012, meeting because it received notification that, effective June 4, 2012, Petitioner would start receiving disability retirement benefits and there would be no need for accommodation. Petitioner sought review by the full Board. On December 20, 2016, the Board issued a final order granting Petitioner's petition for review. Specifically, the Board vacated the MSPB AJ's decision sustaining Petitioner's placement on enforced leave and reversed the enforced leave. The Board, however, affirmed the MSPB AJ's finding of no disability discrimination. In vacating the MSPB AJ's decision sustaining Petitioner's placement on enforced leave and reversing the enforced leave, the Board found that the Agency did not prove by preponderant evidence that Petitioner could not work an eight-hour day. Specifically, the Board found that management did not consider D2's statement in the December 30, 2011, light duty certification that Petitioner could perform other activities (lifting/carrying up to 20 pounds, reaching/working above shoulders, climbing steps or ladders) for two hours each; when those were added to the two hours each of walking, sitting, and standing, it appeared that Petitioner could work an eight-hour day. In addition, the Board found that management did not consider D2's statements in the December 30, 2011, light duty certification and in the January 23, 2012 clarification letter that Petitioner could not work overtime; the statements implied that Petitioner was not medically restricted from working an eight-hour day. Moreover, the Board found that management did not clarify with Petitioner at the January 26, 2012, meeting whether she was, in fact, medically restricted from working an eight-hour day. In affirming the MSPB AJ's finding of no disability discrimination, the Board found that both parties were engaged in the interactive process up until the time the Agency received notification that, effective June 4, 2012, Petitioner would start receiving disability retirement benefits and there would be no need for accommodation. Petitioner then filed the instant petition. ARGUMENTS IN PETITION In her petition, Petitioner argues that the MSPB erred in finding no disability discrimination because the Agency unnecessarily delayed in responding to her reasonable accommodation request and placed her on enforced leave in the meantime. Among other things, Petitioner asserts that the Agency became aware of her medical restrictions on December 30, 2011 when it received D2's December 30, 2011, light duty medical certification, but her telephonic DRAC meeting did not occur until May 22, 2012, which was nearly five months later. In addition, Petitioner asserts that, even after her telephonic DRAC meeting, the Agency did not bother to make a decision on her reasonable accommodation request. Moreover, Petitioner asserts that the Agency's actions do not satisfy its obligation to engage in the interactive process and do not excuse it from a finding of discrimination. STANDARD OF REVIEW 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). ANALYSIS AND FINDINGS As an initial matter, we assume, without so finding, that Petitioner is an individual with a disability under the Rehabilitation Act. An agency is required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability, unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. 29 C.F.R. § 1630.9. A request for reasonable accommodation is the first step in an informal, interactive process between the agency and the individual. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 1 (as revised Oct. 17, 2002). After receiving a request for reasonable accommodation, the agency and the individual should engage in an informal process to clarify what the individual needs and identify the appropriate reasonable accommodation. Id. at Question 5. When the disability and/or the need for accommodation is not obvious, the agency may ask the individual for reasonable documentation about her disability and functional limitations. Id at Question 6. Reasonable documentation means that the agency may require only the documentation that is needed to establish that a person has a disability, and that the disability necessitates a reasonable accommodation. Id. An agency cannot ask for documentation when both the disability and the need for reasonable accommodation documentation are obvious, or when the individual has already provided the agency with sufficient information to substantiate that she has a disability and needs the accommodation requested. Id. at Question 8. An agency should respond expeditiously to a request for reasonable accommodation. Id. at Question 10. If the agency and the individual need to engage in an interactive process, this too should proceed as quickly as possible. Id. Similarly, the agency should act promptly to provide the requested accommodation. Id. Unnecessary delays can result in a violation of the Rehabilitation Act. Id. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation relevant factors would include: (1) the reason(s) for the delay; (2) the length of the delay; (3) how much the individual with a disability and the agency each contributed to the delay; (4) what the agency was doing during the delay; and (5) whether the required accommodation was simple or complex to provide. Id. at n.38. Upon review of the record, we agree with the MSPB's finding that there was no denial of reasonable accommodation in this case. First, we find that the Agency engaged in the interactive process to clarify what Petitioner needed so it could make an informed decision on her request. Specifically, after receiving D2's December 30, 2011, light duty medical certification, management reviewed the medical documentation, corresponded with Petitioner about her return to work, and referred the matter to DRAC. In addition, after receiving the referral from management, DRAC requested additional medical documentation from Petitioner pertinent to her request and held a telephonic meeting with her to discuss her request. Second, we find that the Agency asked Petitioner for reasonable documentation from her medical providers about her chronic knee condition and the resulting functional limitations. Specifically, the record reflects that DRAC properly asked Petitioner to submit DRAC Form 2-B from each of her three treating physicians (D2, D3, D4). We note that the record contains C1's testimony that if DRAC is aware there is more than one physician treating the employee, then DRAC will ask for medical documentation from each of the treating physicians. November 28, 2012, Hearing Transcript (Hr'g Tr.), at 445. We find that it was reasonable for DRAC to request medical documentation from all three of Petitioner's treating physicians instead of relying only on medical documentation from one of them. Third, we find that the Agency did not unnecessarily delay in responding to Petitioner's request for accommodation such that it resulted in a violation of the Rehabilitation Act. Approximately six months elapsed between Petitioner's December 30, 2011, request and her June 4, 2012, disability retirement. However, during much of the time, the Agency was trying to clarify what accommodation Petitioner needed by requesting additional medical documentation from Petitioner and by meeting with Petitioner. In addition, we note that Petitioner contributed to some of the delay because she did not submit all the requested medical documentation until April 20, 2012. Finally, we note that the record contains C1's testimony that, when DRAC was notified that Petitioner's application for disability retirement was granted effective June 4, 2012, DRAC ended the process of considering her reasonable accommodation request because there would be no need for accommodation. Hr'g Tr., at 454, 464-65. CONCLUSION Based upon a thorough review of the record and the specific facts presented in this case, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no unlawful discrimination. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination. 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 (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 __5/18/17________________ Date 1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0320170025 9 0320170025