Tuesday, June 26, 2012

denial of reasonable accommodation - citations


Denial of Reasonable Accommodation Found. 

Complainant worked for the Agency as an Auditor when she was diagnosed with cancer in 2005. Complainant underwent surgery, and transitioned back to work by teleworking four days each week and coming in to the office one day each week. A short time later, Complainant began chemotherapy to which she developed a severe allergic reaction. The allergic reaction developed over several months and resulted in nerve damage that affected her entire body. Complainant received a “fully successful” performance rating for the performance year covering this time. In approximately September 2006, Complainant’s Supervisor told her that she needed to be in the office a minimum of three days per week, and the Supervisor could not support Complainant’s current schedule on a continued, long-term basis. In March 2007, Complainant applied for disability retirement. She also submitted a written request for accommodation, asking to be allowed to telework three days per week, and have simplified duties and no time constraints. The Agency denied Complainant’s request. In May 2007, she requested a reassignment. Complainant ultimately left the Agency in July 2007.

Complainant filed a formal EEO complaint alleging that the Agency denied her reasonable accommodation, and, following a hearing, an AJ found that she was subjected to discrimination. The Commission affirmed the AJ’s findings on appeal. The AJ initially found that Complainant was a qualified individual with a disability. Complainant’s neuropathy substantially limited her ability to sit, think, and concentrate. In addition, although Complainant’s cognitive disability ultimately rendered her incapable of performing the essential functions of her GS-13 Auditor position, she was not precluded from performing the essential functions of a lower-grade Auditor position which did not involve handling high-priority, high-visibility audits. Complainant stated that the Agency routinely hired individuals directly out of college for the lower level positions and those duties were not as detailed, stressful, or intensive. In addition, Complainant’s Supervisor testified that Complainant could have performed the essential functions of a lower-grade, GS-9 Auditor position. The AJ found that Complainant’s March requests would basically have eliminated the essential functions of her position. The AJ found, however, that the Agency failed to conduct a sufficiently broad search for a reassignment for Complainant in response to her May 2007 request. Testimony from Complainant’s Supervisor as well as a Human Resources Specialist confirmed that the Agency generally did not consider reassignment as a reasonable accommodation, and specifically did not do so in Complainant’s case. In addition, while Complainant’s disability retirement application noted that reassignment was not an option because there were no vacant positions at the same grade or pay level and tenure, the Agency failed to consider whether there were any vacant lower level positions into which Complainant could have been assigned as required under the Rehabilitation Act. Testimony from Complainant and her Supervisor show that Complainant was qualified to perform a GS-9 Auditor position. In addition, the record showed that there likely were vacant funded audit positions available during the period in question. Thus, the Agency was ordered, among other things, to offer Complainant reinstatement to a GS-9 level Auditor position or a substantially equivalent position, with appropriate back pay and benefits, and pay Complainant $92,500 in non-pecuniary compensatory damages. Bartron v. Dep’t of Def., EEOC Appeal No. 0720100054 (March 3, 2011), request for reconsideration denied, EEOC Request No. 0520110399 (August 26, 2011).

Denial of Reasonable Accommodation Found.

Complainant, a Mail Processing Clerk, sustained a job-related injury in September 1998, and worked in a rehabilitation position after that time. On December 8, 2006, Complainant was assigned to work a window position. She informed her Managers that her condition had flared up and she did not feel capable of performing those duties. After Complainant refused to work the window, she was sent home and placed in absent without leave status through December 13, 2006. Complainant subsequently filed a formal EEO complaint alleging, among other things, that she was denied reasonable accommodation. Following an investigation, the Agency issued a final decision finding that, while Complainant was a qualified individual with a disability, she was not denied a reasonable accommodation as she chose not to perform the duties within her modified job description during the period in question. On appeal, the Commission noted that while the Agency was providing Complainant with reasonable accommodation in the form of a modified position, the obligation to provide reasonable accommodation is ongoing and may need to be modified at times in accordance with Complainant’s condition. Thus, when Complainant informed her Managers on the date in question that she was unable to perform the requested duties because of a flare-up of her condition, she was in effect asking for further accommodation. While the Agency characterized this as Complainant’s “refusing” to do her job, the Commission found, instead, that she was asking for an adjustment to the accommodation she was receiving. The Commission noted that the Agency did not argue that it would have been an undue hardship to accommodate Complainant’s request for a modification of her duties on the date in question. Complainant stated that other clerks were available to work the window positions, and Agency Managers did not provide any evidence as to why Complainant had to work the window as opposed to another employee. In addition, Complainant requested to do other duties that were within her Modified Clerk duties. Thus, the Commission concluded that the Agency failed to provide Complainant with a reasonable accommodation. The Agency was ordered to, among other things, change Complainant’s leave status to a paid leave status for the period in question, pay Complainant back pay and any benefits due, and investigate Complainant’s claim for damages. Kreger v. U.S. Postal Serv., EEOC Appeal No. 0120080621 (March 7, 2011).



Denial of Reasonable Accommodation Found.

Complainant worked as a Claims Assistant, Receptionist in an office which had a flexible time band for employees to arrive at work in the morning. Complainant often arrived at work later than the time specified in the time band. Complainant initially used various forms of leave, but the Agency subsequently began charging her with being absent without leave (AWOL), reprimanded her for being tardy, and suspended her for two days. During this time, Complainant requested reasonable accommodation, and submitted notes from her psychologist indicating that she had depression and a generalized anxiety disorder. Complainant told the Agency that her conditions affected her ability to sleep, caused her chronic fatigue, and affected her ability to function early in the morning. She asked to use credit hours when her condition prevented her from arriving within the time band, for the Agency to consider her requests for leave without pay, and for the Agency to restructure her job so that she had one to two “quiet days” each month to relieve the stress and anxiety of ongoing public contact. The Agency denied Complainant’s requests. Complainant subsequently filed a formal EEO complaint alleging that the Agency discriminated against her, among other things, on the basis of her disability. Complainant also asked the Agency to reconsider her request for accommodation, and submitted additional information from her licensed counselor. The Agency again denied Complainant’s request. At the conclusion of the EEO investigation, Complainant requested an administrative hearing. Following a hearing in the matter, the AJ found that the Agency discriminated against Complainant on the basis of her disability when it failed to reasonably accommodate her.

On appeal, the Commission concurred with the AJ that the Agency discriminated against Complainant. The Commission initially found that Complainant was an individual with a disability. Complainant’s psychologist indicated that Complainant experienced depression and a generalized anxiety disorder. In addition, Complainant informed the Agency, when she requested an accommodation, that her impairment and the medication she took to manage her impairment limited her ability to sleep and function in the early morning. A licensed counselor also noted that Complainant’s depression interfered with her ability to sleep such that Complainant had not been able to get a restful night’s sleep for more than a year. The Agency’s own medical expert testified that Complainant’s condition created a substantial limitation in the major life activity of sleep, and led to Complainant’s difficulty organizing herself, and concentrating, particularly in the early hours. The Commission also determined that the record supported the AJ’s finding that Complainant was a qualified individual with a disability. The medical expert testified that Complainant was qualified and could perform the essential functions of her job with an accommodation. Complainant had been employed in the same position since February 2007. Finally, the Commission stated that the Agency failed to show that it would have been an undue hardship to accommodate Complainant by allowing her to extend the flexible time band. The record showed that the Agency did eventually grant Complainant that precise accommodation, and therefore, the Agency violated the Rehabilitation Act when it initially denied her a reasonable accommodation. The Commission further determined that the charge of AWOL and discipline for attendance would not have occurred if the Agency had provided Complainant with reasonable accommodation, and therefore, the Agency discriminated against Complainant with regard to those actions. The Agency was ordered, among other things, to pay Complainant $12,000 in proven compensatory damages, as well as back pay and proven attorney’s fees. Harden v. Soc. Sec. Admin., EEOC Appeal No. 0720080002 (August 12, 2011).


Denial of Reasonable Accommodation Found.

Complainant, a Mail Processing Clerk, sustained a job-related injury in September 1998, and worked in a rehabilitation position after that time. On December 8, 2006, Complainant was assigned to work a window position. She informed her Managers that her condition had flared up and she did not feel capable of performing those duties. After Complainant refused to work the window, she was sent home and placed in absent without leave status through December 13, 2006. Complainant subsequently filed a formal EEO complaint alleging, among other things, that she was denied reasonable accommodation. Following an investigation, the Agency issued a final decision finding that, while Complainant was a qualified individual with a disability, she was not denied a reasonable accommodation as she chose not to perform the duties within her modified job description during the period in question. On appeal, the Commission noted that while the Agency was providing Complainant with reasonable accommodation in the form of a modified position, the obligation to provide reasonable accommodation is ongoing and may need to be modified at times in accordance with Complainant’s condition. Thus, when Complainant informed her Managers on the date in question that she was unable to perform the requested duties because of a flare-up of her condition, she was in effect asking for further accommodation. While the Agency characterized this as Complainant’s “refusing” to do her job, the Commission found, instead, that she was asking for an adjustment to the accommodation she was receiving. The Commission noted that the Agency did not argue that it would have been an undue hardship to accommodate Complainant’s request for a modification of her duties on the date in question. Complainant stated that other clerks were available to work the window positions, and Agency Managers did not provide any evidence as to why Complainant had to work the window as opposed to another employee. In addition, Complainant requested to do other duties that were within her Modified Clerk duties. Thus, the Commission concluded that the Agency failed to provide Complainant with a reasonable accommodation. The Agency was ordered to, among other things, change Complainant’s leave status to a paid leave status for the period in question, pay Complainant back pay and any benefits due, and investigate Complainant’s claim for damages. Kreger v. U.S. Postal Serv., EEOC Appeal No. 0120080621 (March 7, 2011).

Denial of Reasonable Accommodation Found.

Complainant worked for the Agency as an Auditor when she was diagnosed with cancer in 2005. Complainant underwent surgery, and transitioned back to work by teleworking four days each week and coming in to the office one day each week. A short time later, Complainant began chemotherapy to which she developed a severe allergic reaction. The allergic reaction developed over several months and resulted in nerve damage that affected her entire body. Complainant received a “fully successful” performance rating for the performance year covering this time. In approximately September 2006, Complainant’s Supervisor told her that she needed to be in the office a minimum of three days per week, and the Supervisor could not support Complainant’s current schedule on a continued, long-term basis. In March 2007, Complainant applied for disability retirement. She also submitted a written request for accommodation, asking to be allowed to telework three days per week, and have simplified duties and no time constraints. The Agency denied Complainant’s request. In May 2007, she requested a reassignment. Complainant ultimately left the Agency in July 2007.

Complainant filed a formal EEO complaint alleging that the Agency denied her reasonable accommodation, and, following a hearing, an AJ found that she was subjected to discrimination. The Commission affirmed the AJ’s findings on appeal. The AJ initially found that Complainant was a qualified individual with a disability. Complainant’s neuropathy substantially limited her ability to sit, think, and concentrate. In addition, although Complainant’s cognitive disability ultimately rendered her incapable of performing the essential functions of her GS-13 Auditor position, she was not precluded from performing the essential functions of a lower-grade Auditor position which did not involve handling high-priority, high-visibility audits. Complainant stated that the Agency routinely hired individuals directly out of college for the lower level positions and those duties were not as detailed, stressful, or intensive. In addition, Complainant’s Supervisor testified that Complainant could have performed the essential functions of a lower-grade, GS-9 Auditor position. The AJ found that Complainant’s March 2007 requests would basically have eliminated the essential functions of her position. The AJ found, however, that the Agency failed to conduct a sufficiently broad search for a reassignment for Complainant in response to her May 2007 request. Testimony from Complainant’s Supervisor as well as a Human Resources Specialist confirmed that the Agency generally did not consider reassignment as a reasonable accommodation, and specifically did not do so in Complainant’s case. In addition, while Complainant’s disability retirement application noted that reassignment was not an option because there were no vacant positions at the same grade or pay level and tenure, the Agency failed to consider whether there were any vacant lower level positions into which Complainant could have been assigned as required under the Rehabilitation Act. Testimony from Complainant and her Supervisor showed that Complainant was qualified to perform a GS-9 Auditor position. In addition, the record showed that there likely were vacant funded audit positions available during the period in question. Thus, the Agency was ordered, among other things, to offer Complainant reinstatement to a GS-9 level Auditor position or a substantially equivalent position, with appropriate back pay and benefits, and pay Complainant $92,500 in non-pecuniary compensatory damages. Bartron v. Dep’t of Def., EEOC Appeal No. 0720100054 (March 3, 2011), request for reconsideration denied, EEOC Request No. 0520110399 (August 26, 2011).


Denial of Reasonable Accommodation and Harassment Found.

Complainant worked as an Aviation Safety Inspector. After undergoing treatment for cancer, he experienced high frequency hearing loss which required him to wear hearing aids. In addition, while at work, he was exposed to noise from two military planes and the noise blew out both of his hearing aids, causing severe trauma and a 71 percent hearing loss. Complainant was provided with a microphone and hearing aid through the Department of Labor. Complainant indicated, however, that he needed the cooperation of others at meetings to wear or hold the microphone so that he could hear them. Complainant stated that management resisted using the microphone even after repeated requests to do so. Complainant subsequently experienced further hearing loss, at which time he requested an office that would allow him to use a speaker phone so as not to disturb his co-workers. Complainant was provided with an office without windows which he initially accepted, but later rejected because it made him feel claustrophobic. Complainant requested an office with windows, but the Agency stated that such an office would be located too close to others and the noise from the speaker phone would be disruptive. Complainant then requested a special telephone that would transcribe speech into text. Complainant also requested an alternative job. Both of these requests were denied by Complainant’s Manager. Complainant ultimately filed a formal EEO complaint alleging that the Agency discriminated against him and harassed him on the basis of his disability.

The Agency did not contest that Complainant was a qualified person with a disability. With regard to the claim that Complainant was denied reasonable accommodation, the Commission noted that Complainant made several requests for accommodation, and was ultimately provided with the special telephone that could transcribe speech so that Complainant was able to perform his duties in his cubicle. Thus, the Commission concluded that the Agency provided Complainant with an effective accommodation in the form of the special telephone. Nevertheless, the Commission found that the Agency failed to provide an effective accommodation so that he could hear managers and co-workers. Complainant stated that his Managers refused to hold the microphone during meetings. Further, the Commission noted that since management did not set an appropriate example for how to use the microphone, other co-workers would similarly refuse to hold it. As a result, Complainant was unable to hear and understand what the speakers were saying to him. Thus, although the Agency provided Complainant with the microphone, management did not cooperate to make sure the device was effective, and, as such, the Commission found that Complainant was denied an effective accommodation.

The Commission also determined that Complainant was subjected to hostile work environment harassment, in part because of his disability. The Commission noted that the events concerning the microphone were not only a denial of reasonable accommodation, but also created a hostile environment. As stated, Managers regularly refused to properly place the microphone close to the individual speaking so that Complainant could understand what was being said, and, based on management’s actions, co-workers believed they were not required to properly use the microphone. In addition, two Managers mentioned medical retirement to Complainant. One of the Managers also commented on Complainant’s cough, a remaining side effect of Complainant’s cancer treatments, and used the cough to assert that Complainant had hygiene issues. The Commission concluded that the discriminatory hostile work environment and the denial of reasonable accommodation were sufficiently severe as to result in objectively intolerable working conditions such that Complainant felt compelled to resign. Thus, Complainant proved his claim of constructive discharge. The Agency was ordered, among other things, to offer Complainant reinstatement to his position, with appropriate back pay and benefits, conduct an investigation with regard to Complainant’s claim for damages, and provide EEO training to all employees in the office where Complainant worked. Wagner v. Dep’t of Transp., EEOC Appeal No. 0120103125 (December 1, 2010).




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