The AJ was erroneous on their ruling of treatment for Chronic fatigue syndrome by Chiropractor. (or was it the agency attorney that was erroneous?)
Patti J. Collins,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120081048
Agency No. 2006-0045-R09
DECISION
On December 21, 2007, Complainant filed a timely appeal from the Agency’s
November 27, 2007, final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. The Commission accepts the appeal pursuant
to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.
ISSUES PRESENTED
The issues presented are: (1) whether the Agency properly found that it
articulated legitimate, non-discriminatory explanations for its actions,
which Complainant did not show were pretext for unlawful discrimination;
(2) whether the Agency properly found that Complainant was not subjected
to discriminatory harassment; and (3) whether the Agency violated the
Rehabilitation Act when it asked Complainant for additional documentation
to support her reasonable accommodation requests.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Environmental Scientist at the Agency’s San Francisco, California
(Region 9) facility.
On April 21, 2006, Complainant filed an EEO complaint alleging that
the Agency discriminated against and harassed her on the bases of sex
(female), disability (Chronic Fatigue Syndrome), age (born in 1947),
and in reprisal for prior protected EEO activity under the Rehabilitation
Act when:
1. On February 3, 2006, the Agency rescinded Complainant’s reasonable
accommodation;
2. On February 16, 2006, the Agency denied Complainant’s request for
“Medical Flexiplace”;
3. On February 28, 2006, the Agency threatened Complainant with Absent
without Official Leave (AWOL);
4. On March 1 and 6, 2006, the Agency denied Complainant sick leave;
5. On March 5, 2006, the Agency denied Complainant Leave Bank hours; and
6. The Agency treated Complainant differently than other employees when
it required her to provide medical documentation to justify her requests
for Medical Flexiplace, extended sick leave, and Leave Bank hours.
In an investigative affidavit, Complainant stated that she was diagnosed
with Chronic Fatigue Syndrome in 2001. Exhibit F2. She stated that her
condition affected her energy level, ability to recover from any kind of
exertion, walking and balance, and ability to sit or stand. Complainant
stated that in August 2001, the Agency granted her a reasonable
accommodation because of Chronic Fatigue Syndrome. Specifically, she
stated that the Agency accommodated her by allowing her to work four 10
hour days per week, and to work from home for three of the four work days.
Complainant stated that she typically spent time at the Regional Office,
a remedial site, or at contractors’ offices one day per week.
Complainant further stated that in July 2004, the Local Reasonable
Accommodation Coordinator (LORAC) requested that she provide updated
medical documentation that revealed her medical diagnosis, prognosis,
medical history, physical and/or mental limitations, anticipated date
of full recovery, and the impact of her condition on her job and life.
She stated that in August 2004, she responded that she did not understand
the reason for the request because she had been successfully working
with a modified work schedule for about three years, as evidenced by
successful performance reviews and awards. Complainant further stated
that her condition had not changed, and she continued to need the same
work arrangement based on her physical condition. Complainant stated
that during this time period, her supervisor changed from S1 to S2. 1
Complainant stated that in March 2005, the LORAC again requested
updated medical information and claimed that the Agency had failed
to conduct a proper reasonable accommodation analysis in August 2001.
Complainant further stated that the LORAC also informed her that her
2001 documentation was insufficient to support Complainant’s reasonable
accommodation request because it did not describe the extent of her
physical and/or mental limitations. Complainant also stated that the
LORAC informed her that if Complainant wanted to establish a modified
work schedule as a permanent reasonable accommodation, she needed to
submit the requested documentation. Complainant stated that in an e-mail
dated April 29, 2005, she responded that she did not feel that the LORAC
was properly considering that Complainant followed instructions when she
applied for a reasonable accommodation in 2001, and had engaged in many
discussions with supervisors during the four years of working with the
reasonable accommodation.
Complainant further stated that on May 2, 2005, the Chief of Federal
Facilities (Chief) informed her that the Agency needed updated medical
information to support her request for an accommodation because the
August 2001 letter from her chiropractor indicated that the duration and
long-term impact of her condition was unknown. She stated that the Chief
wanted Complainant to provide updated documentation by May 11, 2005.
Complainant stated that she subsequently saw a physician and relayed
updated medical documentation to the Chief. She stated that on June 17,
2005, the Chief e-mailed her and indicated that Complainant’s updated
medical documentation did not describe how her condition limited her
activities or how it affected her ability to work.
Additionally, Complainant stated that the LORAC informed her that she must
submit updated medical information that established how Complainant’s
condition affected major life activities, but the chiropractor who
prepared the documentation for Complainant was not qualified to provide a
medical diagnosis of Chronic Fatigue Syndrome. Complainant further stated
that the LORAC also informed her that she needed an assessment from
an occupational health physician, family practitioner, or an internal
medicine physician. Complainant stated that she told the LORAC that
that she would try to get the requested information and would keep her
updated about her progress in obtaining that information.
Complainant also stated that on September 30, 2005, the Chief left
Complainant a telephone voice message that directed her to return to
work and discuss her work schedule and location with S2. She stated
that she told the Chief that she was putting together the final package
of materials for her reasonable accommodation request, but the Chief
directed her to return to work before she could submit this package.
Complainant stated that she submitted an accommodation request package
on October 4, 2005. She stated that, in the package, she argued her
position that the Agency had provided her with no good reason to change
her modified work schedule, which had been successful for over four years.
Complainant also stated that she provided a description of her medical
condition, how it impacted major life activities, and how it impacted
her ability to perform job functions.
Complainant further stated that on October 7, 2005, the Chief rescinded
her reasonable accommodation via voicemail message, but withdrew the
rescission on October 14, 2005, and allowed her to continue her modified
work arrangement while the Agency reviewed Complainant’s reasonable
accommodation request. Complainant stated that the Chief wanted her
to consent to release her medical information to the Agency’s medical
consultant. Complainant stated that she agreed to release the information
to the Agency medical consultant on February 16, 2006, even though the
Agency never answered her questions about the release.
Complainant stated that on February 3, 2006, she received a letter
from the Chief dated January 20, 2006, that denied her request for a
reasonable accommodation and required her to develop a work schedule
that was consistent with Agency policies. Complainant stated that the
letter said that the information she submitted did not support a finding
that she was disabled and indicated that she was unable to perform the
essential functions of her position.
Complainant stated that in response to the Chief’s letter, she discussed
her schedule and work arrangements with S2. Complainant stated that
she asked S2 to allow her to continue the work arrangement she had for
four years by utilizing the Medical Flexiplace (Flexiplace) program for
four months. Complainant stated that the Agency denied her request for
Flexiplace on the basis that she was not eligible for Flexiplace because
her chiropractor indicated that her condition was permanent and stable,
whereas Flexiplace was designed for people with temporary conditions.
Complainant further stated that S2 stated that Complainant could work
a typical Flexiplace schedule, which required an employee to be in the
office at least three days in a work week. Complainant stated that S2
also said that she was willing to grant Complainant leave as needed,
but Complainant had to report to the office for some of her work duties.
Complainant further stated that she received a letter from the Chief dated
February 28, 2006, which reiterated that her reasonable accommodation was
revoked and that Complainant could not work Flexiplace. She stated that
the Chief also stated that Complainant had not submitted an approved work
schedule, and if she did not begin reporting to the workplace at least
three days per week in accordance with regular Flexiplace policies, she
would be charged AWOL and subjected to progressive disciplinary measures.
Complainant stated that the Chief also stated that if she continued to
request sick leave on a recurring basis, she had to provide medical
documentation to support the sick leave request. Complainant stated
that the Chief also said that she could apply for Leave Bank hours and
Disability Retirement, but Complainant had to submit medical documentation
to support any such application.
Complainant stated that she requested sick leave on March 1 and March
6, 2006, but S2 denied her request because she did not submit medical
documentation for the sick leave requests. Complainant further stated
that her request for annual leave was also denied. Complainant further
stated that on March 1, 2006, she requested to be allowed to use Leave
Bank hours for four months. Complainant stated that the Human Resources
Officer (HR Officer) informed her that in order to receive bank hours,
she had to submit detailed medical documentation that revealed the history
of her condition, clinical findings and evaluations, medication used,
and future treatment plans. Complainant named four female employees
who she asserted were not required to submit the level of documentation
she was required to submit to obtain leave.
The Chief stated that the essential functions of Complainant’s
position included serving as a Remedial Project Manager by evaluating
environmental impact site conditions, meeting with federal and state
officials, contractors, and private parties to determine a remedial plan,
and managing the successful implementation of the remedial plan. Exhibit
F3. She further stated that Complainant’s position also involved traveling
to remedial sites and to meetings, computer work, telephone interactions,
developing reports, and interacting with people.
The Chief stated that as with some types of permanent reasonable
accommodations, Complainant’s accommodation needed to be reviewed
periodically to ensure the special work arrangement was appropriately
based on the nature of the disability and the needs of the Agency.
She stated that in or about March 2004, the LORAC found that
Complainant’s original reasonable accommodation request and supporting
medical documentation were not sufficient to establish Complainant as
a qualified disabled individual, and the approval of her accommodation
had not been properly processed through the Reasonable Accommodation
Coordinator and other Agency officials. The Chief further stated that
she reviewed Complainant’s information and felt that Complainant’s
medical documentation did not establish a permanent condition.
The Chief further stated that all of Complainant’s medical documentation
had been provided by her chiropractor, including the diagnosis of Chronic
Fatigue Syndrome. She stated that according to Agency physicians,
a chiropractor is not qualified to make a diagnosis of Chronic Fatigue
Syndrome. She also stated that the medical documentation did not contain
clinical and lab reports or an evaluation of Complainant’s limitations
with respect to the essential functions of her position. The Chief stated
that Complainant’s chiropractor submitted a more detailed evaluation in
September 2005 that described the treatment Complainant needed in order to
potentially improve, but the documentation did not convey specifics about
Complainant’s condition, how it affected her ability to perform the duties
of her position, or the type of work schedule and travel she should have.
The Chief stated that beginning in July 2004, the LORAC requested that
Complainant provide updated medical information that revealed her
diagnosis, how the condition affected major life activities and her
ability to perform her job duties, and how the requested accommodation
overcame the limitations and ensured that she could perform the essential
functions of her position. She stated that Complainant questioned
the need for providing the requested information and maintained that
the work arrangement had been successful since 2001 and her condition
had not changed. The Chief stated that she conferred with Complainant
regarding the matter from July 2004 until February 2006, when she directed
Complainant to develop a standard work arrangement with S2. The Chief
stated that during this time period, Complainant provided additional
information from her chiropractor, but the Agency had already informed
her that this information was insufficient. The Chief stated that
Complainant’s accommodation therefore was rescinded on January 20, 2006.
The Chief further stated that beginning on February 16, 2006, Complainant
provided letters from her chiropractor, but they did not answer the
issues the Agency asked her to address, including prognosis, long-term
impact, limitations on performing the functions of her position, and
the expected date of full recovery. The Chief stated that the letters
submitted by Complainant were very brief and general and only said the
Agency should not alter her work arrangements, but did not provide any
detail about her condition, her limitations, or the impact on her ability
to perform specific functions of her position. The Chief stated that up
to the time that Complainant resigned, she never provided the requested
medical documentation.
The Chief further stated that Complainant and her chiropractor also
indicated that Complainant could not perform some of the essential
functions of her position, including traveling to various locations,
attending public meetings, and engaging in extended meetings. She stated
that she therefore determined that Complainant’s requested accommodation
could not be approved because it still would not enable her to perform the
essential functions of her position. The Chief also stated that she did
not believe that Complainant was actually traveling to remedial sites, the
regional office, or other meeting locations on her designated “split day,”
and she never saw her at the regional office more than a couple of times.
The Chief further stated that in late September 2005, she revoked
Complainant’s accommodation because she thought the information from the
chiropractor was not acceptable. She stated that the LORAC advised her to
explore asking Complainant to submit the requested medical documentation
to the Agency’s consulting physician. She stated that in the interim, she
allowed Complainant to continue on her modified schedule, but Complainant
did not provide a medical release for the information to be forwarded
to the consulting physician. She stated that she denied Complainant’s
request for an accommodation in February 2006, because Complainant
failed to submit the requested information. The Chief stated that
regardless of the Agency physician’s role, Complainant’s request would
not be approved without a qualified medical evaluation from someone other
her chiropractor. “At no time did the Complainant ever pick up the phone
and call me, or stop by my office, to discuss this matter. It seemed
her method of communicating through very sporadic emails was designed
to drag out the process and not to facilitate a timely processing of
her accommodation request,” the Chief stated. Exhibit F3, p. 9.
Regarding Complainant’s request for Flexiplace, the Chief stated
that Complainant wanted to attain her modified work schedule through
Felxiplace. She stated that the HR Officer managed Flexiplace and
determined that Complainant’s condition did not fit the criteria for
the program because it was a continuing illness, and the program was
designed for temporary medical conditions. She stated that in a letter
dated February 28, 2006, she revoked Complainant’s work arrangement and
informed Complainant that she had not submitted an approved work schedule.
The Chief stated that she also informed Complainant that if she did not
begin reporting to the office at least three days per week in accordance
with regular Flexiplace policies, she would be charged AWOL and subjected
to progressive disciplinary measures.
The Chief further stated that she informed Complainant that if she
continued to be incapacitated and requested sick leave on a recurring
basis, she would have to provide medical documentation to support the
sick leave request. The Chief stated that she informed Complainant that
she could apply for Leave Bank hours and Disability Retirement, but that
Complainant would have to submit medical documentation to support any
such application.
The Chief stated that in March 2006, Complainant submitted requests for
sick leave, but S2 denied the requests because the requests were for
more than three days of leave, and Complainant failed to provide the
necessary medical documentation from a medical expert to support the
requests. She further stated that in March 2006, Complainant requested
Family and Medical Leave Act (FMLA) leave instead of sick leave, and
management agreed to grant her leave under FMLA pending the receipt of
the correct forms and proper medical documentation within 15 days of
the Agency’s request. She stated that Complainant ultimately submitted
the required Department of Labor form but did not submit the required
medical documentation to support the request; therefore, she was charged
AWOL for the time she was absent.
The Chief further stated that she believed that the HR Officer denied
Complainant’s Leave Bank request because Complainant failed to provide
detailed medical information to support the request. She stated that on
April 10, 2006, she spoke with Complainant via telephone and suggested
an in-person meeting, but Complainant chose to communicate only by
telephone. She stated that Complainant was placed in AWOL status in
late March 2006, and was ultimately advised that she needed to provide
medical information by May 2, 2006. She stated that on May 13, 2006,
Complainant resigned. She stated that no one in her Division or the
region worked a modified work schedule that allowed them to work from
home full-time to the extent Complainant worked. She further stated
that most of the employees who Complainant cited as comparators were
part-time employees, and no employee worked out of the office more than
one or two days per week, in accordance with the Region’s policy.
The Labor Relations Specialist stated that when she reviewed Complainant’s
job modification record in March 2004, it was apparent that the medical
documentation that was used to approve her modification was not detailed
enough to establish her claim that she had a disability or to grant her
a reasonable accommodation under the Rehabilitation Act. Exhibit F4.
Specifically, she stated that the only medical documentation Complainant
provided was from her chiropractor, who was not qualified to make
an official diagnosis of Chronic Fatigue Syndrome according to the
Agency’s physician. She also stated that the documentation in the
record did not contain a detailed medical evaluation of Complainant’s
condition, an assessment of specific limitations as compared against
the essential functions of her position, or an explanation of how the
requested accommodation overcame the limitations and allowed Complainant
to perform the essential functions of her position. The Labor Relations
Specialist stated that in March 2004, she asked Complainant to provide
updated medical information regarding the diagnosis of her medical
condition, the affect of the condition on major life activities, and
how her condition limited her ability to perform the essential duties
of her position.
The Labor Relations Specialist stated that she informed Complainant that
documentation from her chiropractor was insufficient, but Complainant
returned with more medical information only from her chiropractor.
She further stated that when she asked Complainant for her written consent
to send Complainant’s medical documentation to the Agency physician so
he could review it, Complainant questioned his role in the process, and
after she addressed Complainant’s questions and explained the physician’s
role, Complainant sent another e-mail that asked the same questions.
The Labor Relations Specialist stated that she had no choice but to
advise management that Complainant’s documentation was insufficient to
support her accommodation request because Complainant would not provide
the requested documentation from a qualified medical professional and
release her documentation to the Agency physician for review.
S2 stated that Complainant requested sick leave for the week beginning
March 1, 2006, and again for the following week, but she denied
the requests because Complainant did not submit the proper medical
documentation from her doctor to support the sick leave requests.
Exhibit F6. S2 stated that she told Complainant that she could use sick
leave, but the Chief directed her not to approve the annual leave requests
because Complainant was not covering her workload. S2 further stated
that she denied Complainant leave under the FMLA because Complainant
failed to provide the requested medical documentation.
S2 stated that none of the employees cited by Complainant as comparators
had the kind of special work arrangement that Complainant had. She stated
that one of the comparators works out of the regional office five days
per week and travels as needed. She further stated that a second employee
is a part-time employee, yet still reports to the office. She stated
that employees were required to work out of the office at least three
days per work and from home no more than twice per week.
The record contains a letter from Complainant’s chiropractor to S1 dated
May 8, 2001. Exhibit F9a, p. 4. The letter states, in pertinent part,
the following:
[Complainant] is a 54-year-oId right-handed female, who has been in these
offices since March of 1996. [Complainant] is currently suffering from
Chronic Fatigue Syndrome.
Due to the symptomatology associated with the above diagnosis it is our
professional recommendation that [Complainant] go on Limited Disability
Status. While the period of Total Temporary Disability has helped to
stabilize her condition, it is my professional recommendation that she
be provided with Reasonable Accommodation: modification or adjustment
to the job, the work environment, or the way things are usually done to
enable her to work at least a limited or full time schedule.
The duration of the impairment and long-term impact are unknown at this
time. The condition substantially limits such life activities as walking,
speaking, sitting, sleeping, breathing, seeing, standing, performing
manual tasks, reaching and lifting. Without Reasonable Accommodation,
this condition impairs her ability to perform her essential job
duties. Reasonable Accommodation will support her ability to perform
these functions. However, exposure to extremes of heat and cold, long
workdays, and travel should be avoided.
If you have any further questions concerning [Complainant’s] care,
please contact us at [telephone number].
The record also contains a copy of eight brief letters from
Complainant’s chiropractor dated from May 10, 2005 to March 6, 2006.
The letters informed the Agency that Complainant suffered from Chronic
Fatigue Syndrome, Complainant’s condition was permanent but stable, and
Complainant should retain her modified work schedule. Additionally, the
letters stated that Complainant was limited in her ability to maintain
posture (sitting and standing), change posture, ascend and descend
stairs, walk distances, lift, carry, breath, sleep, and recover from
exertion. Also in the letter dated September 16, 2005, the chiropractor
stated that Complainant’s “conditions are non-visible to others.”
Exhibit F9a.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right
to request a hearing before an EEOC Administrative Judge (AJ). When
Complainant did not request a hearing within the time frame provided in
29 C.F.R. § 1614.108(f), 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 her to discrimination as
alleged. Specifically, the decision determined that Complainant was
not a qualified individual with a disability because she did not prove
that she could perform the essential functions of her position or that
she was substantially limited in a major life activity because of her
condition. The decision further determined that Complainant failed to
establish a prima facie case of discrimination on the alleged bases.
Additionally, the Agency found that Complainant failed to prove that
she was denied a reasonable accommodation for her condition or that the
alleged actions were sufficiently severe or pervasive to constitute a
hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency improperly found
no discrimination. Complainant maintains that the Agency erred in
finding that there was no reprisal in this case because there was no
nexus between her prior EEO activity and the alleged adverse actions.
Complainant argues that she engaged in EEO activity from 2004 through
2006 when she requested a reasonable accommodation and engaged in
the interactive process to attain the accommodation, and therefore,
there is a close temporal nexus between her prior EEO activity and
the alleged actions. Complainant further argues that the AJ erred in
finding that she is not an individual with a disability or qualified to
perform the essential functions of her position. Complainant argues that
the Agency should not have asked her for documentation to support her
request for an accommodation because her disability was obvious because
supervisors had witnessed her “disability progress” through the years.
Complainant’s Brief, p. 34. Finally, Complainant contends that she
was subjected to harassment because the alleged actions were severe and
pervasive enough to constitute a hostile work environment. The Agency
requests that we affirm its final decision.
STANDARD OF REVIEW
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
(MD-110), at Chapter 9, § VI.A. (Nov. 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”).
Reasonable Accommodation
Under the Commission’s regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency
can show that accommodation would cause an undue hardship. 29 C.F.R. §
1630.9. As a threshold matter in a case of disability discrimination
under a failure to accommodate theory, the complainant must demonstrate
that he is an “individual with a disability.” For purposes of analysis,
we assume, without so finding, that Complainant is an individual with
a disability.
In this case, Complainant requested that the Agency allow her to work
from home for three days per week or 30 hours per week. Complainant
submitted letters from her chiropractor in support of her request.
The chiropractor’s letters revealed that he diagnosed Complainant
with Chronic Fatigue Syndrome and recommended that Complainant work
outside the home only one day per week so that Complainant could
avoid physiological stressors. In February 2006, the Agency rescinded
Complainant’s modified work arrangement and denied her requests for leave
after Complainant failed to provide requested documentation from a medical
doctor that fully explained Complainant’s condition with respect to its
prognosis/diagnosis, Complainant’s ability to perform the essential
functions of her position, Complainant’s limitations, and the nexus
between the requested accommodation and Complainant’s condition.
We note that an agency cannot ask for documentation in response to a
request for a reasonable accommodation when: (1) both the disability
and the need for reasonable accommodation are obvious, or (2) the
individual has already provided the agency with sufficient information
to substantiate that she has a disability under the Rehabilitation Act
and needs the reasonable accommodation requested. See EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act (RA Guidance), Notice No. 915.002, Q. 8
(Oct. 17, 2002). However, an agency may ask an individual for reasonable
documentation about his disability and functional limitations when the
disability or the need for accommodation is not obvious. Id. at Q. 6.
Complainant contends that the Agency should not have asked her for
additional medical documentation because supervisors had witnessed her
disability progress through the years. However, Complainant did not
explain how this made it obvious that she had a disability and needed a
reasonable accommodation. Moreover, Complainant’s mere assertion that
she had Chronic Fatigue Syndrome and needed a modified work arrangement
did not make her need for an accommodation obvious.
Complainant further argues that the Agency should not have asked for
additional documentation because she submitted documentation supporting
her requests in 2001. However, the 2001 documentation was stale,
brief, and vague. Further, the documentation stated that the duration
of Complainant’s condition was unknown. Moreover, although the
chiropractor’s letter baldy asserted that Complainant was substantially
limited in major life activities, it does not reveal to what extent
Complainant was limited in major life activities or the reasoning behind
the chiropractor’s conclusions.
Further, during the relevant time period, the only medical documentation
submitted to the Agency regarding Complainant’s condition were
brief statements and letters prepared by Complainant’s chiropractor.2
Chiropractors practice a system of therapy in which disease is considered
the result of abnormal function of the nervous system, and the method
of treatment usually involves manipulation of the spinal column
and other body structures. The American Heritage Dictionary of the
English Language, (4th Ed., 2000). Chronic Fatigue Syndrome, or CFS,
is a debilitating and complex disorder characterized by profound fatigue
that is not improved by bed rest and that may be worsened by physical or
mental activity. Centers for Disease Control, at http://www.cdc.gov/cfs/.
The record reveals that Complainant’s physician is not a medical doctor,
and that the diagnosis and treatment of Chronic Fatigue Syndrome is
outside the scope of standard chiropractic therapy. An agency may require
that the documentation about the disability and functional limitations
come from an appropriate health care or rehabilitation professional.
RA Guidance at Q.6. In this case, we find that the Agency was
entitled to request more extensive, updated medical documentation about
Complainant’s condition from a more appropriate medical professional.
During the relevant time period, Complainant repeatedly failed to submit
any medical documentation from an appropriate health care professional
that would establish her entitlement to a reasonable accommodation.
We note that an individual is not entitled to a reasonable accommodation
if her disability or need for reasonable accommodation is not obvious, and
the individual refuses to provide the reasonable documentation requested
by the agency. Id. Consequently, the Commission finds that the Agency
was not obliged to provide her with the requested accommodation.
Disparate Treatment and Harassment
Generally, claims of disparate treatment are examined under
the tripartite analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). For instance,
to establish a prima facie case of reprisal, Complainant must show that
(1) she engaged in protected EEO activity; (2) the Agency was aware of
the protected activity; (3) subsequently, she was subjected to adverse
treatment by the Agency; and (4) a nexus exists between her protected
activity and the adverse treatment. Whitmire v. Dep’t of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Once a complainant has established a prima facie case, the burden
of production then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Com. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the
burden reverts back to Complainant to demonstrate by a preponderance of
the evidence that the Agency’s reason(s) for its action was a pretext
for discrimination. At all times, Complainant retains the burden
of persuasion, and it is her obligation to show by a preponderance
of the evidence that the Agency acted on the basis of a prohibited
reason. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509 (1993);
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16
(1983).
For purposes of analysis, we assume, without so finding, that Complainant
is a qualified individual with a disability and has established a prima
facie case of discrimination.3 Nevertheless, we find that the Agency
articulated legitimate, non-discriminatory reasons for its actions.
As detailed above, Agency officials stated that Complainant’s modified
schedule was rescinded and requests for leave denied because she failed
to submit proper documentation that supported her requests for a modified
schedule and leave.
Complainant contends that other employees were not required to provide
as much medical documentation to support their accommodation requests
as she was required to submit. However, there is no evidence that any
other employee asked for the type of extensive modified work arrangement
that Complainant requested. In fact, management noted that Complainant
was the only employee in the Region who had worked 30 out of 40 hours
at home for years. Further, as a full-time employee, Complainant was
not similarly situated to part-time employees who had more modest,
standard modified work arrangements. Complainant failed to prove
that the Agency’s non-discriminatory explanations were a pretext for
unlawful discrimination. Thus, we find that the Agency properly found
no discrimination.
Finally, to the extent that Complainant is alleging that she was subjected
to a hostile work environment, we find under the standards set forth in
Harris v. Fork-lift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s
claim of hostile work environment must fail. See EEOC Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(Mar. 8, 1994). A finding that Complainant was subjected to hostile
work environment discrimination is precluded by our determination that
Complainant failed to establish that any of the actions taken by the
Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal
Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency’s final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS – ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official Agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 21, 2011
Date
1 S1 was Complainant’s supervisor from 2001 until 2004. S2 became
Complainant’s supervisor in August 2004.
2 Although the record reflects that Complainant submitted a brief note
to the Agency from a medical doctor dated March 8, 2006, the accepted
issues only pertain to alleged actions that occurred from February 3,
2006 until March 6, 2006. Therefore, we restrict our review to matters
that occurred during the time period of the accepted issues.
3 We note that most of Complainant’s appellate arguments pertain to
the Agency’s finding that she is not a qualified individual with a
disability and did not establish a prima facie case of discrimination.
Because we assume, without so finding, that Complainant is a qualified
individual with a disability and established a prima facie case of
disparate treatment, we will not address Complainant’s appellate arguments
pertaining to these matters.
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0120081048
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081048
